Citation Nr: 0005576 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 96-50 054 ) DATE ) ) On appeal received from the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for Gardner's syndrome with total colectomy and removal of the small intestine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mark D. Chestnutt, Counsel INTRODUCTION The veteran served on active duty from January 1957 to August 1960. In October 1989 service connection for Gardner's syndrome with total colectomy and removal of the small intestine was denied. This decision was upheld by an August 1990 decision of the Board of Veterans' Appeals (Board). In an August 1990 decision, the Board denied entitlement to service connection for Gardner's syndrome. This appeal stems from a June 1996 decision of the Waco, Texas, RO, that determined no new and material evidence had been presented to reopen the claim. Subsequently, the RO determined that new and material evidence has been presented to reopen a claim of entitlement to service connection for Gardner's syndrome with total colectomy and removal of the small intestine. The Board agrees with that determination and will review the claim de novo. FINDING OF FACT Gardner's syndrome is a congenital disease and there is not a reasonable possibility of a valid claim concerning whether Gardner's syndrome, with postoperative residuals, was incurred in, or aggravated by, service. CONCLUSION OF LAW A well-grounded claim of entitlement to service connection for Gardner's syndrome with total colectomy and removal of the small intestine has not been presented. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The service medical records show that on the January 1957 entrance examination report, a firm, moveable, nontender mass was palpated medial to the left scapular area. A September 10, 1957 record notes a large cyst on the veteran's back, in the left scapular area, that had reportedly been present three to four years. The following day, it was again noted that the veteran had noted a firm, nontender mass over the vertebral border of the left scapula for the past three to four years. No other symptoms were reported. The cyst was removed, and evaluation revealed a ruptured epidermoid cyst. The July 1960 separation examination report is essentially negative; the abdomen and viscera, anus and rectum, and skin and lymphatics were all normal. January to February 1961 records from the University of Texas, M.D. Anderson Hospital reveal that the veteran had had a lesion on the dorsal surface of the right foot "for as long as he [could] remember." It had only become larger in the past six months. A ganglion on the dorsal surface of the left wrist was noted, as well as a freely moveable lesion just above the patella on the left. At one point the right foot lesion was diagnosed a malignant melanoma, but this was revised to a final diagnosis of cellular blue nevus--benign. Later records, however, from the early-1970s, indicate that this may have been a melanoma after all. Later records from the mid-1970s, however, show that the melanoma had been removed and only noted the condition by history. August 1974 records from M.D. Anderson Hospital reveal multiple polyps of the colon. The veteran underwent an exploratory laparotomy and small bowel resection with revision of an ileostomy at that time. September 1974 records note only by history that the veteran had had a melanoma on the dorsum of the right foot. During a November 1975 hospitalization at M.D. Anderson Hospital, the veteran was thought to have possible intra- abdominal desmoid tumors as part of Gardner's syndrome. After evaluation, the impression was that the veteran did have the third component of Gardner's syndrome, i.e. multiple intra-abdominal desmoid masses. The diagnosis thus was of Gardner's syndrome, postoperative status total proctocolectomy, August 1974, for familial polyposis, now with intra-abdominal desmoid tumors. In March 1977 the veteran underwent a proctocolectomy and jejunostomy at M.D. Anderson Hospital. A June 1977 VA record indicates that the veteran had "show gut" syndrome; a July 1978 VA record indicated he had a short bowel. A March 1989 VA clinical record notes a 20-year history of Gardner's syndrome, along with an extensive surgical history. In April 1989 veteran underwent surgery at a VA facility: a removal of Hickman line and placement of right femoral 2 lumen central line. The veteran was hospitalized by VA in May 1989, at which time it was noted that the veteran had had an ileectomy, colectomy and ileostomy 13 years previously. Gardner's syndrome was noted. The veteran was examined by several VA physicians in August 1989. One examination report recounts, by history, that the veteran had been informed in 1969 that he had colon polyps, but that no treatment had been undertaken at that time. The veteran asserted that his father may have died from this condition, and that two sisters have had ileostomies due to colectomy from familial polyposis. Objective evaluation revealed a central line catheter and various surgical scars. The diagnoses included Gardner's syndrome, postoperative status total colectomy, removal of all small intestine, except for eight inches of the ilium, for multiple polyps, allegedly benign. The examiner opined, based upon history, that the veteran had familial polyposis. The examiner noted the cyst that was removed in service, but that this had been noted at the time to have been present three or four years. The examiner noted that there was no documentation of the veteran's having any gastrointestinal problems during service, and that it would be impossible to state that Gardner's syndrome was present at that time. A VA neurological examination provided in August 1989 revealed a cranial osteoma in the right posterior frontal region. It was stated that this condition was most likely secondary to Gardner's syndrome. The veteran asserted that this had begun before service, in about 1954, and that it had been asymptomatic. Private medical records, including records on microfiche, from approximately January 1961 to July 1979 from the University of Texas, M. D. Anderson Hospital, have been associated with the claims file. They contain the longer clinical record of the veteran's multiple hospitalizations and treatment at that facility during those times, as noted supra. In May 1996, the veteran submitted several medical journal articles, ranging in date from approximately 1950 to 1988. One of these articles states that "the association of multiple polyposis and epidermoid cysts was fortuitous rather than generally determined," noting that such cysts were "a rather ordinary pathologic finding." Smith, William G., Multiple Polyposis, Gardner's Syndrome and Desmoid Tumors, DISEASES OF THE COLON & RECTUM, Vol. I, No. 5, 323, 330 (Sept.- Oct. 1958). Desmoid tumors were said to occur in exaggerated numbers with multiple polyposis. Id. 330-31. "It is suggested that any patient with epidermoid cysts be advised to undergo examination of the large bowel if (1) a familial distribution of epidermoid cysts is known, (2) the cysts are excessive in number, or (3) the faces and extremities are prominently involved." (Emphasis added.) Id. at 331. Another article by the same author indicates that a "true diagnosis can be suspected long before the appearance of the colonic polyps. The presence of widely distributed epidermal inclusion cysts and osteomas should alert the physician to the possible eventual development of polyposis." Smith, William G., Gardner's Syndrome: Report of a Case, DISEASES OF THE COLON AND RECTUM, Vol. 15, No. 4 (July-Aug. 1972). An October 1996 letter from the veteran's private physician was submitted. After noting that he was no long with the University of Texas, and did not have access to the veteran's medical record therefrom, he indicated that he could not answer the question of whether the veteran had Gardner's syndrome in service. The physician noted that the veteran did have an epidermoid cyst of the left scapular area, and that "epidermal cysts of this nature, although quite common in the general population, are a specific component of Gardner's Syndrome." The veteran also submitted a November 1996 letter from a physician at the University of Texas M.D. Anderson Cancer Center. This doctor recounted the 1961 finding of a malignant lesion of the right foot; and that again in 1974 the veteran was referred because of the finding of polyps throughout the large bowel. "This diagnosis, in conjunction with his prior findings of subcutaneous cysts and abnormal dentition, confirmed the clinical designation of Gardner's Syndrome." The physician stated that "the hereditary nature of [Gardner's syndrome] is present at birth. The manifestations of these 3 conditions which define the syndrome can appear at different times during a patient's life. While [the veteran] manifested two of the three conditions necessary for a diagnosis of the syndrome at an early age, the absence of intestinal symptoms during the first two decades of his life did not lead to the identification of the third component of this syndrome, namely, polyps of the colon." The physician also stated that the veteran had this condition since birth, even though the diagnosis of the polyps, "establishing the nature of this condition, did not occur until later years." Well groundedness Service connection will be granted for disabilities resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in line of duty. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates than an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). If the chronic disease provisions of 38 C.F.R. § 3.303(b) do not apply, a claim may still be well grounded if the condition is observed during service or any applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); see 38 C.F.R. §§ 3.307, 3.309 (regarding defined chronic diseases, which do not include Gardner's syndrome but do include malignant tumors, manifested to a compensable degree within one year of service). Regarding a congenital malformations, with no evidence of the pertinent antecedent active disease or injury during service, the conclusion must be that it preexisted service. 38 C.F.R. § 3.303(c). Mere congenital or developmental defects, absent, displaced or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. The VA General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90. 38 C.F.R. §§ 3.303(c), 3.306. Compare 38 C.F.R. § 4.57. In order for a service-connection claim to be well grounded, there generally must be a medical diagnosis of a current disability, medical or sometimes lay evidence of incurrence or aggravation of a disease or injury in service, and a medical nexus between the inservice injury or disease and the current disability. The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), aff'g sub nom. Epps v. Brown, 9 Vet. App. 341 (1996). In this case, the left scapular cyst was shown with essentially identical findings on entrance in January 1957 as it was in September 1957 when it was excised. The Board not only finds that the cyst preexisted service, since it was shown on the entrance examination report, but that there is no indication that this inservice treatment of the cyst was anything more than ameliorative. There is no indication that this treatment had even amounted to a temporary flare-up, much less a chronic worsening. Thus, whether or not this particular cyst was related to the veteran's Gardner's syndrome, no worsening of this preexisting condition has been shown in service. Although there were conflicting diagnoses, the lesion excised for the right foot is not shown to have represented a worsening of Gardner's syndrome. More importantly, the veteran's own physician, Dr. Romsdahl, and the medical treatises the veteran submitted, indicate that Gardner's syndrome itself is familial, and in the veteran's case, the Board finds that it clearly and unmistakably preexisted service. The physician's November 1996 letter makes it clear that even though there was no showing of polyps in service to establish the condition, Gardner's syndrome was nonetheless present since birth. Again, however, even if the syndrome had been present in service, the gastrointestinal findings were normal at separation, and no diagnosis of Gardner's syndrome was made at that time. There is no competent evidence that Gardner's syndrome worsened in service. The Board notes that the veteran's submitted treatises do not help him. Even assuming their credibility for well groundedness purposes, they confirm that the condition at issue is congenital, and nothing therein relates to this particular veteran's case. See Sacks v. West, 11 Vet. App. 314 (1998); compare Wallin v. West, 11 Vet. App. 509 (1998). Without evidence of aggravation of this preexisting congenital disease, Gardner's syndrome, there is no plausible basis for the claim. Since there is no competent evidence of aggravation, and since the veteran, as a layperson, is not qualified to state that such aggravation took place, the claim is not well grounded. Thus, he fails to meet the second prong of the Caluza test. See Savage v. Gober, 10 Vet. App. 488 (1997), supra; Robinette v. Brown, 8 Vet. App. 69 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). For the Board to find based on the evidence of record that the veteran's preexisting Gardner's syndrome was aggravated by his military to service would be to resort to nothing more than pure speculation. An award of service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (1999); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bostain v. West, 11 Vet. App. 124, 127 (1998). Since the claim is not well grounded, it must be denied. 38 U.S.C.A. § 5107 (West 1991); Edenfield v. Brown, 8 Vet. App. 384 (1995). ORDER Entitlement to service connection for Gardner's syndrome with total colectomy and removal of the small intestine is denied. Thomas J. Dannaher Member, Board of Veterans' Appeals