Citation Nr: 0006537 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-10 058A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for spastic colon syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to June 1969. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in December 1997 by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran's claim for service connection for spastic colon syndrome is plausible, and the RO has obtained sufficient evidence for correct disposition of this claim. 2. The medical evidence shows a current diagnosis of spastic colon syndrome. 3. The veteran's spastic colon syndrome is not the result of an in-service disease or injury. CONCLUSIONS OF LAW 1. The veteran has presented a well-grounded claim for service connection for spastic colon syndrome, and VA has satisfied its statutory duty to assist him in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The veteran did not incur spastic colon syndrome as a result of his military service. 38 U.S.C.A. §§ 1110, 1111, and 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, and 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C.A. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. 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 injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). The veteran submitted to a VA Medical Center (VAMC) compensation and pension (C&P) examination in June 1998, the report of which clearly states that the veteran currently sustains spastic colon syndrome (a form of irritable bowel syndrome). Thus the Board finds there is sufficient evidence of a current disability and the first element of a well grounded claim is therefore satisfied. With respect to the second requirement of a well grounded claim - the in-service occurrence or aggravation of an injury - the Board notes a December 1968 entry in the veteran's service medical records which indicates that a stool sample taken from him at that time revealed the presence of many trophozoites of the parasite Entamoeba histolytica. The veteran's medical history as described in a post-service VAMC hospital report dated February-March 1973 confirms that the presence of this parasite indicates an in-service incurrence of amebiasis, a parasitic infection of the large intestine. The Board therefore finds that since the veteran incurred amebiasis in-service, the second element of a well-grounded claim is accordingly satisfied. As stated above, the third element of a well grounded claim requires competent medical evidence linking a current disability with the in-service incurrence of an injury or disease. In support of his claim, the veteran offers a December 1999 letter written by a private physician, Dr. MacKercher, who states therein as follows: "I saw and evaluated [the veteran] on 1 December 1999. By history, he has been having difficulty with diarrhea with occasional episodes of incontinence beginning with service in Vietnam. He apparently had amebic dysentery during that period and has had trouble with diarrhea since then. He has occasional episodes of bright red blood on the toilet paper but has no significant bleeding . His physical examination currently is unremarkable. "It is my feeling that, by history, his GI complaints date to his service in Vietnam. A specific diagnosis has not been made." Generally, the Board should consider only the evidence that is or may be favorable to the claim in deciding whether a claim is well-grounded. See Arms v. West, 12 Vet. App. 188, 195 (1999) (noting that generally "only the evidence in support of the claim is to be considered and generally a presumption of credibility attaches to that evidence in order to decide whether or not any VA claimant has sustained the claimant's burden of submitting a well-grounded claim under section 5107(a)"). Therefore, based on Dr. MacKercher's statement that the veteran's current "GI complaints date to his service in Vietnam," the Board finds that the third element of a well-grounded claim is accordingly satisfied and, thus, the veteran has effectively submitted a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The veteran having stated a well-grounded claim, VA has a duty to assist in the development of facts relating to the claim. 38 U.S.C.A. § 5107(a) (West 1991). In this case, the veteran was provided appropriate physical examinations and attempts were made to obtain all referenced medical records. The Board therefore finds that VA has done everything reasonably possible to assist him and that further development in this case is not warranted. 38 U.S.C.A. § 5107(a) (West 1991). In evaluating a claim on the merits, the evidence is no longer presumed to be credible. The Board must assess the evidence of record in rendering a decision, including an analysis of the credibility and probative value of the evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, the Board may not base a decision on its own unsubstantiated medical conclusions, but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board is cognizant of the fact that the veteran maintains that his current spastic colon condition is somehow related to his bout with amebiasis incurred in-service in December 1968. However, he does not have the medical expertise to render a probative opinion as to medical diagnosis or causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The only medical evidence in support of the veteran's claim is the above-referenced letter written by Dr. MacKercher. Evidence not favorable to his claim consists of the balance of the medical evidence. In this case, the preponderance of the evidence is against the veteran's claim for service connection for spastic colon syndrome because the evidence unfavorable to the claim is more persuasive and of greater weight than the favorable evidence. With regard to the veteran's aforementioned February-March 1973 VAMC hospitalization (which occurred approximately four years following his separation from service), the report therefrom indicates he was admitted with a recent history of bloody diarrhea and cramping and that three stool specimens daily were examined for parasites and ova and none were found. The report further states that "the patient has a history of having amebiasis while overseas in the service in 1968, but the patient swears this is the first time that he has had any diarrhea since then." Because the veteran failed to return from an authorized absence from the hospital, he was assigned an irregular discharge and, as the physician notes in the hospital report, it was not "proved that the patient had, or had not E. histolytica." More definitively, the June 1998 C&P examination report indicates the following impression: "(1) Amebiasis, documented in 1968, treated, cured; (2) Spastic colon syndrome." In addition, the physician commented that "[the spastic colon syndrome] is in no way related to [the veteran's] previous history of dysentery or amebiasis in 1968." The Board finds this statement highly probative since it offers an informed opinion regarding the central issue in this case and was formulated with the benefit of having access to the veteran's medical records, including the results of a flexible sigmoidoscopy performed in February 1998. In contrast, Dr. MacKercher's conclusion that the veteran's current digestive disorder is service-related was apparently reached without consultation with the veteran's medical records and without proffering a current diagnosis. Instead, it is evidently based entirely on the veteran's medical history as related to him by the veteran. In Godfrey v. Brown, 8 Vet. App. 113, 121 (1995), the Court offers the following guidance in such cases: The Board is not required to accept doctors' opinions that are based upon the appellant's recitation of medical history. See e.g. Owens v. Brown, 7 Vet. App. 429 (1995) (Board not required to accept uncorroborated testimony of claimant as to dental treatment during service; Board not bound to accept physicians' opinions based on claimant's recitation of events). See also Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (rejecting medical opinion as "immaterial" where there was no indication that the physician reviewed claimant's SMRs or any other relevant documents which would have enabled him to form an opinion on service connection on an independent basis); Swann v. Brown, 5 Vet. App. 229 (1993) (holding that the BVA was not required to accept the medical opinions of two doctors who rendered diagnoses of post-traumatic stress disorder almost twenty years after claimant's separation from service and who relied on history as related by the appellant as the basis for those diagnoses); Heuer v. Brown, 7 Vet. App. 379, 386-87 (1995) (to demonstrate entitlement to service connection for hearing loss, there must be medical evidence indicating a nexus to service, and where the condition was noted during service, continued symptomatology can aid in establishing service connection). Having thus discounted Dr. MacKercher's statement, the Board finds dispositive the comments contained in the June 1998 VA C&P examination report indicating that the veteran's current spastic colon syndrome is "in no way related" to his in- service encounter with amebiasis, which it labels as "treated and cured." The February-March 1973 VAMC hospital report is inconclusive regarding the presence of Entamoeba histolytica trophozoites and includes a statement from the veteran that he had not incurred problems with diarrhea since his in-service December 1968 hospitalization. For these reasons, the Board concludes that the evidence against the veteran's claim is more probative and of greater weight and, based on this evidence, finds as fact that the veteran's spastic colon syndrome was not caused by an in- service disease or injury. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for spastic colon syndrome, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. A reasonable doubt exists where there is an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (1999). It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Id. It is not a means of reconciling actual conflict or a contradiction in the evidence. Id. In this case, for the reasons and bases discussed above, a reasonable doubt does not exist regarding the question of whether the evidence establishes a nexus between the veteran's current disability and his in-service incurrence of amebiasis. ORDER A claim for entitlement to service connection for spastic colon syndrome is denied. M. W. GREENSTREET Member, Board of Veterans' Appeals