Veteranclaims’s Blog

September 11, 2012

Single Judge Application, Service Connection; 38 C.F.R. § 3.304(d); 38 U.S.C. § 1154(b)

Excerpt from decision below:
“Special rules apply when considering the lay testimony of a combat veteran.
Under
6

38 U.S.C. § 1154(b), where a veteran “engaged in combat with the enemy
in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation.” See also 38 C.F.R. § 3.304(d) (2012) (implementing regulation for section 1154(b), stating that “[s]atisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation”). Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of incurrence or aggravation of an injury or disease incurred in or aggravated by combat service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).”
===========================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2324
JARED P. MARSH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge:
The appellant, Jared P. Marsh, appeals through counsel an
April 15, 2011, Board of Veterans’ Appeals (Board) decision that denied
entitlement to disability
compensation benefits for diverticulitis, chronic bowel disorder,
manifested by recurring
constipation, diarrhea, and a ruptured bowel. Record (R.) at 3-18. The
Board also remanded a
disabilitycompensation
claimforhypertensivevasculardiseaseforfurtherdevelopment. Therefore,
this claim is not before the Court. See Hampton v. Gober, 10 Vet.App. 481,
483 (1997). Both
parties have filed briefs. This appeal is timely, and the Court has
jurisdiction to review the Board’s
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate
the Board decision and
remand the matters for further adjudication.
I. BACKGROUND
The appellant had active service in the U.S. Army from February 2, 2004,
to May 5, 2007,
with a deployment to Iraq from January 25, 2006, to November 11, 2007,
where he served as a tank
crewman. R. at 577, 128. He was awarded the Combat Action Badge, Global
War on Terrorism
Service Medal, Iraq Campaign Medal, Army Service Ribbon, and Overseas
Service Ribbon. R. at

577. The Combat Action Badge is one of the military decorations that VA
recognizes as evidence
of participation in combat. VA ADJUDICATION PROCEDURES MANUAL M21-1 MANUAL
REWRITE
(MANUAL M21-1MR), pt. IV, subpt. 11, 1.D. 13(e).
In March 2007, an Army medical evaluation board recommended the
appellant’s discharge
from the service because of a medial collateral ligament right knee Previous DocumentinjuryNext Hit
sustained during service,
with chronic pain and instability, for which he underwent right knee
arthroscopy. R. at 690-92. The
appellant also injured his back during service. R. at 691, 667.
The appellant did not report a history of intestinal problems on his entry
examination, and
no gastrointestinal disorder was found on his entrance examination. R. at
669-72. His service
medical records (SMRs) do not show any treatment or diagnosis for a
gastrointestinal disorder.
R. at 663-68, 669-72, 673-77, 678-81, 690-92. In a report of medical
history at separation, the
appellant denied having any recurring intestinal issues, and no
gastrointestinal or bowel
abnormalities were found on his separation examination. R. at 663-65, 666-
68.
On June 2, 2007, a month after being discharged from service, the
appellant was hospitalized
for complaints of increasing abdominal discomfort. R. at 289-93. An
examination revealed
diminished bowel sounds with definite right lower and midline tenderness,
positive, very mild
rebound, and no guarding or masses. Id. After a computed tomography (CT)
scan revealed
abnormalities in the appellant’s colon, he underwent exploratory surgery,
after which he was
diagnosed with “pneumoperitoneum[1
] with peritonitis[2
] with perforated sigmoid colon and
phlegmonous mass in the sigmoid colon.” R. at 305-07. To treat this
condition, the appellant had a
sigmoid colon resection and placement of a sigmoid colostomy3
and Hartmann pouch. Id. After a
Pneumoperitoneum is the presence of air in the peritoneum (sac that lines
the abdomen)
that is attributed to disease. STEDMAN’S MEDICAL DICTIONARY (27th ed. 2000)
1353, 1412
[hereinafter STEDMAN’S].
2
1
Peritonitis is inflammation of the peritoneum. STEDMAN’s at 1353.
A colostomy is an artificial connection between the colon and the skin.
STEDMAN’S at
2
3
383.

pathology report was concluded, the appellant was diagnosed with
diverticulosis,4
acute
diverticulitis,5
perforated diverticulum, and acute peritonitis. R. at 309, 311. Two months
later, the
appellant underwent a colostomy reversal with resection and low anterior
anastomosis.6
R. at 473.
The diagnosis was colostomy, status post perforated diverticulitis. R. at
469.
In June 2007, the appellant filed a claim for disability compensation
benefits for a perforated
colon with colostomy. R. at 1216-42. The appellant laterexplained that
while he was in Iraq, he “was
exposed to very extreme conditions [including] extreme heat, dehydration,
poor fiber intake and the
inability to use the restroom when needed, [leading] to many bowel
problems.” R. at 542. He noted
that “IVs [intravenous solutions] were a regular routine upon returning
from missions [and] I was
often constipated” but also suffered from occasional diarrhea. Id.
In September 2007, the appellant underwent a VA examination, leading to a
diagnosis of
“remote history of diverticulitis with perforation of sigmoid colon
requiring surgical intervention
(partial colon resection) without residual and with zero to minimal
functional effect.” R. at 394.
In October 2007, the RO denied entitlement to service connection for
diverticulitis and a
chronic bowel disorder. R. at 821-29, 344-60, 277-79. The appellant
appealed this decision to the
Board. R. at 540-46. To support his claim, he submitted a January 2008
report from James R.
Campbell, D.O., his private physician, whoopinedthathis diverticultis and
subsequent surgerywere
related to service. R. at 314-17. Dr. Campbell stated:
Jared gives a history of being trained by the army and deployed to Iraq
. . . when
complications arose due to harsh conditions. Working in an extremely
stressful war
environment, the patient suffered conditions resulting in extreme heat
dehydration,
problems with diet, including a poor fiber intake and the inability to
adequately use
the restroom when need. This over a period of time during his stay in Iraq
developed
Diverticulosis is the presence of a number of diverticula (herniations of
mucosa of the
colon). STEDMAN’S at 532.
Diverticulitis is an inflammation of the diverticulum (pouch or sac
opening from the
gut), especially of the small pockets in the wall of the colon that fill
with stagnant fecal material
and become inflamed. STEDMAN’s at 532.
Anterior anastomosis refers to a surgical technique to create an opening
from the
sigmoid colon to the rectal stump. ATLAS OF PELVIC SURGERY, http://www
surgery.com (last visited Aug. 16, 2012).
3
6
5
4

in[to] significant bowel problems where IVs were required for his
dehydration upon
returning to mission. He complained of being often constipated with
alternating
occasional diarrhea which was further complicated byhis inability to reach
restroom
facilities.
R. at 315-17. Dr. Campbell noted the appellant’s subsequent intestinal
surgery and further opined:
[I]n review of the records and the timing of this unfortunate development
it is my
opinion that this incident resulted from an adverse environment suffered
during his
tour in Iraq war theatrewith the above mentioned problems of dehydration,
poor diet,
inability to access restrooms in combination with the dehydration
resulting in colon
problems and pressure creating the diverticuli. Development of the
diverticuli in the
sigmoid colon would not be a common finding in a 25-26 year old without
additional
adverse conditions contributing[,] which I believe were related to his
service
connection during the Iraq war. Subsequent experience is that this patient
has
suffered with this major surgery, infection, complications, colostomy,
reversal
colostomy that results in this patient having in essence a post traumatic
stress
response as well as significant depression upon interview.
R. at 317-19. The appellant underwent a June 2008 VA examination. The
examiner diagnosed the
appellant with a history of diverticulitis with perforation of sigmoid
colon requiring partial colon
resection without residuals. R. at 394. The VA examiner opined that the ”
ruptured diverticulus with
consequent pneumoperitoneum requiring surgical intervention is less likely
as not (less than 50/50
probability) caused by or a result of lack of adequate hydration, fibrous
foods while deployed to Iraq
during military service.” R. at 408. As a rationale for his opinion, the
VA examiner noted that “there
is no documentation of problems of constipation, abdominal pain or
incidents of need for IV
hydration while in Iraq. On his separation physical he indicates that he
is in good health.” Id.
Additionally, the VA examiner noted that the perforation of the
appellant’s colon mayhave occurred
because he took laxatives for his condition, which may have further
stressed his intestinal system
resulting in the rupture. Id.
In April 2011, the BVA rendered the decision on appeal. R. at 3-13. The
Board denied the
claims after concluding that the appellant’s diverticulits, and chronic
bowel disorder were not
incurred or aggravated during service. R. at 5.
4

II. ANALYSIS
A. Inadequate Examination
The appellant argues that the June 2008 VA opinion, relied on by the Board,
was inadequate
becausetheexaminerfailedto considertheappellant’s description ofhis in-
servicesymptomatology.
Appellant’s Brief(Br.)at22-23. Additionally,
theappellantarguesthattheBoardgaveaninadequate
statement of reasons or bases for relying on the VA examiner’s opinion
that the appellant’s
diverticulitis was not related to service over that of Dr. Campbell’s
opinion that the appellant’s
condition was related to service. Appellant’s Br. at 23-28.
“It is the responsibility of the [Board], not this Court, to assess the
credibility and weight to
be given to evidence.” Owens v. Brown, 7 Vet.App. 429, 433 (1995). The
Board is free to favor one
medical opinion over another as long as the Board provides adequate
reasons or bases for doing so.
Id. at 435. However, a medical opinion that the Board relies upon must be
adequate. A medical
examination “is adequate where it is based upon consideration of the
veteran’s prior medical history
and examinations and also describes the disability, if any, in sufficient
detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one.'” see
Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407-
08 (1994) (quoting
Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). Additionally, the
opinion “must support its
conclusion with an analysis that the Board can consider and weigh against
contrary opinions.”
Stefl, 21 Vet.App. at 124-25. “If a diagnosis is not supported by the
findings on the examination
report or if the report does not contain sufficient detail, it is
incumbent upon the rating board to
return the report as inadequate for evaluation purposes,” 38 C.F.R. § 4.2 (
2012). See Stegall,
11 Vet.App. 270-71 (remanding matter where VA examination was inadequate
under § 4.2);
Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate
medical examination
frustrates judicial review).
Whether a medical examination report is adequate is generallya finding of
fact that the Court
reviews under the “clearly erroneous” standard of review. See 38 U.S.C. §
7261(a)(4);
Nolen v. Gober, 14 Vet.App. 183, 184 (2000). A finding of fact is clearly
erroneous when the Court,
after reviewing the entire evidence, “is left with the definite and firm
conviction that a mistake has
been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948
); see also
5

Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
Here, the Board explained that the June 2008 VA examiner’s opinion that
the appellant’s
condition was not related to service was “entitled to the most weight
regarding the diagnosis and
etiology of the [appellant’s] diverticulitis and a chronic bowel disorder ”
because the VA examiner
provided “a full and complete rationale for his opinion, ” and his opinion
was “based upon an
evaluation of the appellant, ” including a “thorough examination” of the
appellant and “review of
the claims folder.” R. at 18.
The June 2008 medical examiner concluded that the appellant’s
diverticulitis and bowel
disorder were not related to service because there was an absence of
documentation in the SMRs of
his symptoms. It is clear that the VA examiner relied on the absence of
corroborating evidence in
the SMRs of specific complaints of diarrhea and constipation. In
considering the nature of an
appellant’s disability, a VA examiner should consider the appellant’s
description of his
symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that a medical examination that ignores lay assertions regarding symptomatology is of little probative value); Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (finding an examination inadequate where the examiner failed to consider the appellant’s assertions of symptomatology); Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding a medical examination inadequate where
the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”). The Court agrees with the appellant that the Board erred in relying on inadequate medical opinion.
B. Credibility of Appellant’s Testimony
The appellant argues that the Board improperly determined that his
testimony regarding his
in-servicesymptoms ofconstipation andalternatingdiarrheais not credible.
Appellant’s Br.at14-19.
The Board is obligated to determine the credibilityof layevidence. See
Buchanan, 451 F.3d at 1337.
In conducting this analysis, the Board can consider possible bias and
conflicting statements. Id.
When considering documents submitted by a veteran, the Board may also
consider “internal
consistency, facial plausibility, and consistency with other evidence
submitted on behalf of the
veteran.” Caluza v. Brown, 7 Vet.App. 498, 511 (1995).
Special rules apply when considering the lay testimony of a combat veteran.
Under
6

38 U.S.C. § 1154(b), where a veteran “engaged in combat with the enemy
in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation.” See also 38 C.F.R. § 3.304(d) (2012) (implementing regulation for section 1154(b), stating that “[s]atisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation”).
Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of
incurrence or aggravation of an injury or disease incurred in or aggravated by combat service. See Collette v. Brown, 82 F.3d
389, 392 (Fed. Cir. 1996). Even when the combat presumption applies, a “veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Shedden, 381 F.3d at 1167.
As with any determination, the Board must explain the reasoning behind its credibility determinations. Its statement of reasons or bases must be adequate to enable an appellant to understand the precise basis for the Board’s decision, and to facilitate
informed review in this Court.
See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995);
Gilbert, 1 Vet.App. at
57. To comply with this requirement, the Board must analyze the
credibility and probative value of
the evidence, account for the evidence it finds persuasive or unpersuasive,
and provide the reasons
for its rejection of any material evidence favorable to the claimant. See
Caluza, 7 Vet.App. at 506.
Here, the appellant testified regarding his in-service symptoms of
alternating bouts of
constipation and diarrhea. The Board found this testimony was not credible
because there “were no
such complaints of these symptoms in the appellant’s SMRs despite evidence
that he sought medical
care for other disabilities.” R. at 11. The Board reasoned that because
the appellant sought medical
attention for other ailments, “[i]t is logical to conclude that a
reasonable person, who had access,
would seek medical attention [for his gastrointestinal symptoms] if it
were required.” Id. The
appellant contends that the Board’s reasoning violates the Court’s
holdings in Colvin v. Derwinski,
1 Vet.App. 171 (1991), overruled on other grounds by Hodge v. West, 155 F.
3d 1356 (Fed. Cir.
7

1998), and Kahana v. Shinseki, 24 Vet.App. 428 (2011). Appellant’s Br. at
18-19. The Court agrees.
In Kahana, the veteran’s SMRs and separation examination report did not
contain any
notation of a right knee injury. The Board determined that the veteran’s statements of an in-service
knee injury were not credible because, “[g]iven that a right [anterior
cruciate ligament] tear is quite
a significant injury, one would expect to see at least some documentation of it in the [SMRs]” and
“one would expect that the [veteran] would have mentioned [it] on his
report of medical history at separation.” Id. at 434 (internal quotation marks omitted). The Court held that, in
finding the
veteran’s lay statements not credible “based on its determination that a
particular injury, which is
alleged to have occurred in service, is of the type that should have been
documented in the service
records and was not,” the Board impermissibly made “a medical
determination as to the relative
severity, common symptomatology, and usual treatment of an . . . injury without citing to any
independent medical evidence to corroborate its finding” in violation of Colvin. Id.
Essentially, that is what the Board did in this case. The Board based its conclusion that the
appellant’s testimony was not credible on its belief that his alternating bouts of constipation and
diarrhea were of such severity that they “required medical treatment” and
that the appellant would
have been expected to report these symptoms to the Army physician when he
sought treatment for
his right knee Previous HitinjuryNext Hit. These are medical determinations that are generally
outside the competency
of the Board, and the Board provided no independent medical evidence to
support them. See id. at
434. The Board violated Colvin byproviding a medical opinion on the nature
and course of an Previous HitinjuryNext Document
without supporting that opinion with independent medicalevidence.
Therefore, the Court concludes
that the Board erred in determining that the appellant was not credible on
that basis. See Kahana,
24 Vet.App. at 435; Colvin, 1 Vet.App. at 175.
The Board also erred by failing to apply the combat presumption set forth
in 38 U.S.C.
§ 1154(b). The appellant was awarded the Combat Action Badge for his
service in the Persian Gulf.
The VA recognizes this medal as evidence that the recipient is a combat
veteran and entitled to the
benefit of the section 1154(b) presumption. MANUALM21-1MR, pt. IV, subpt.
11, 1.D. 13(e). The
testimony of combat veterans is entitled to more favorable treatment than
lay testimony submitted
by noncombat veterans. See Arms v. West, 12 VetApp. 188, 195-97 (1999). In
creating the combat
presumption,Congressrecognizedthatin combatsituations
militaryrecordkeepingmaybedeficient
8

because records that are normally kept might not have been created or may
have been destroyed. Id.
Because of the likelihood of incomplete record keeping, statements by
combat veterans as to
in-service symptoms are entitled to special weight. Id. Here, the
appellant not only testified regarding his symptoms, but he also explained that he received IVs from medics in the field to treat his dehydration. R. at 29-31. He further testified that the medic occasionally gave him medication for his constipation and diarrhea. R. at 30. He stated that combat soldiers were only seen by the
doctor on the base if they were experiencing a medical problem that could not be treated by the unit medic. R. at 30. It is not surprising that in a combat situation there would be no record of the
appellant complaining of alternating bouts of constipation or diarrhea.
Despite the appellant’s Combat Action Badge and his testimony of the combat conditions under which he served, the Board failed to apply section 1154(b) to his claims. The failure to do so was error.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s April 15, 2011, decision is VACATED and the matters are
REMANDED for further
adjudication consistent with this decision.
DATED: August 31, 2012
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel
9

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