IRRITABLE COLON SYNDROME (SPASTIC COLITIS MUCOUS COLITIS)

Summary

The veteran, an Army veteran who served from July 1989 to March 1992, sought to revise prior VA decisions from June 1998 and February 1999 that denied service connection for irritable bowel syndrome (IBS). The veteran's claim was based on clear and unmistakable error (CUE) in those prior decisions. The Board of Veterans' Appeals (BVA) reviewed the case following a Court of Appeals for Veterans Claims (CAVC) decision that vacated a prior BVA denial. The veteran's claim centered on the interpretation of a December 1997 VA examination report. The original RO decisions erroneously stated that service treatment records were negative for stomach conditions, despite the 1997 examination noting the veteran's current stomach disability began after an in-service appendectomy and diagnosing IBS or partial intestinal obstruction. The CAVC found the RO misread the favorable 1997 examination, which established a diagnosis, in-service incurrence, and nexus. The BVA agreed that this misreading constituted CUE, as it manifestly changed the outcome of the prior decisions. Consequently, the Board granted revision of the prior decisions, establishing service connection for IBS back to August 28, 1997.

Rationale

Prior denials based on erroneous interpretation of VA examination; Misreading of favorable examination report constituted CUE; Established diagnosis, in-service incurrence, and nexus

Full Decision Text

Citation Nr: A23007017
Decision Date: 04/11/23	Archive Date: 04/11/23

DOCKET NO. 190219-3669
DATE: April 11, 2023

ORDER

Revision of a June 1998 and February 1999 rating decision denying service connection for irritable bowel syndrome based on clear and unmistakable error is granted.

FINDING OF FACT

The Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) made a mistake of fact in the June 1998 and the February 1999 decisions that manifestly changed the outcome of the decisions.

CONCLUSION OF LAW

The criteria for revision of June 1998 and February 1999 rating decisions denying service connection for irritable bowel syndrome based on clear and unmistakable error have been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service with the United States Army from July 1989 to March 1992.

In June 2018, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form, selecting higher-level review. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (codified at 38 C.F.R. § 19.2 (d)). This matter is before the Board of Veterans' Appeals (Board) on appeal from the January 2019 RAMP rating decision issued by the AOJ (in this case, the Regional Office (RO)) denying revision of the June 1998 and February 1999 rating decisions on the basis of clear and unmistakable error (CUE). In February 2019, the Veteran appealed to the Board, selecting the hearing docket. A hearing was held with a Veterans Law Judge in July 2020. 

The Board denied the Veteran's claim to revise the decisions in January 2021. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and a November 2022 Memorandum Decision vacated the January 2021 Board decision and remanded the appeal back to the Board to issue a decision consistent with the Memorandum Decision. 

A final and binding rating decision will be accepted as correct in the absence of CUE. A request for revision based on CUE is an exception to the rule of finality and is grounds to reverse or revise a decision where the evidence establishes CUE in a final RO decision. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105 (a).

CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has held that such error must be based on the record and the law that existed at the time of the prior decision. Russell v. Principi, 3 Vet. App. 310, 314 (1992). In determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the veteran is not for application, since error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105 (a); see also Yates v. West, 213 F.3d 1372 (2000).

The Court has propounded the following three-pronged test to determine whether there was CUE in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existing at that time were incorrectly applied, (2) an error occurred based on the record and the law that existed at the time of the prior adjudication in question, and (3) the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Bouton v. Peake, 23 Vet. App. 70 (2008); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994). A breach of a duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002).

The Veteran contends that the previous denials from June 1998, and February 1999, for irritable
 that existed at the time of the prior adjudication in question, and (3) the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Bouton v. Peake, 23 Vet. App. 70 (2008); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994). A breach of a duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002).

The Veteran contends that the previous denials from June 1998, and February 1999, for irritable bowel syndrome (IBS), also claimed as stomach condition, were clearly and unmistakably erroneous, and a revision is warranted. Specifically, in the June 1998 rating decision, the RO erroneously stated that the Veteran's service treatment records (STRs) were negative for complaint or treatment of stomach conditions or pain. 

Turning to the evidence available at the time of the decisions, the Veteran submitted his claim for service connection for stomach pains associated with diarrhea in August 1997.

In November 1990, the Veteran reported having dull pain on his left side with worsening upon standing in the left lower quadrant of his abdomen. He reported that he had the same problem once nine years prior. He also reported that he took an aspirin with water and had severe burning abdominal pain and nausea about fifteen minutes later. The Veteran was diagnosed with dyspepsia probably secondary to pill erosion. A November 1990 radiological report reflects that the Veteran underwent an acute abdominal series, which revealed mild amount of both large and small bowel gas with mild amount of colonic feces, and mild nonspecific small bowel motility disturbance. 

In January 1991, the Veteran was seen after sustaining a fall. The Veteran reported having loss of consciousness, stomach pain, cold feet, and low back pain. A May 1991 consultation report reveals that the Veteran was status post appendectomy (January 28, 1991) with subsequent hospitalization and right lower quadrant pain. The examiner noted that the Veteran's right lower quadrant pain was probably post-surgical scarring related to abdominal musculature and not abdominal adhesions. The examiner also noted that there was no history of irritable bowel disease. In June 1991, the Veteran was seen for pain around the appendectomy site. In July 1991, he reported still having tenderness around the appendectomy scar dysesthetic sensation. The examiner noted that the scar was well healed with no sign of inflammation, and diagnosed a neuroma. In August 1991, the Veteran reported having severe abdominal pain status post appendectomy. No hernia was noted. In another August 1991 examination, the Veteran was diagnosed with neuroma of appendectomy scar. On October 10, 1991, the Veteran was seen for follow-up of a painful appendectomy scar. The examiner noted some degradation of skin along the scar. On October 21, 1991, the Veteran was diagnosed with reflex sympathetic dystrophy and chronic abdominal wall pain. On October 22, 1991, an epidural catheter was implanted due to the chronic abdominal wall pain. In November 1991, the Veteran underwent excision of the appendectomy scar and division of segmental nerves. The Veteran's diagnosis was noted as neuroma associated with appendectomy scar. 

In January 1992, the Veteran underwent a separation examination. He noted having stomach, liver, and intestinal trouble. He reported having abdominal wall pain. Upon examination, the Veteran had an extremely well-muscled abdomen wall. He reported tenderness to palpation all along the scar. The examiner noted thrombotic thrombocytopenic purpura (TTP) along excision site of abdominal wall neuroma. The Veteran was diagnosed with abdominal wall neuralgia. A January 1992 consultation sheet noted that the Veteran was undergoing a medical evaluation board (MEB) for persistent post-op pain (abdominal wall neuralgia) after appendectomy.

Post-service, the Veteran underwent a VA examination in May 1992 wherein he complained of continuous sharp pain at the incision site when doing overhead or twisting movements, as well as a burning sensation. In a June 1992 rating decision, the Veteran was granted service connection for residuals of an appendectomy and a neuroma. 

In March 1994 treatment records, the Veteran complained of abdominal pain, nausea, and diarrhea, that had been present about two months. An upper GI series was normal. He was diagnosed with gastroenteritis. 

In August 1994, the Veteran was afforded a VA examination for pain at the incision site. The Veteran reported being treated for stomach problems and pains in his side from
 after appendectomy.

Post-service, the Veteran underwent a VA examination in May 1992 wherein he complained of continuous sharp pain at the incision site when doing overhead or twisting movements, as well as a burning sensation. In a June 1992 rating decision, the Veteran was granted service connection for residuals of an appendectomy and a neuroma. 

In March 1994 treatment records, the Veteran complained of abdominal pain, nausea, and diarrhea, that had been present about two months. An upper GI series was normal. He was diagnosed with gastroenteritis. 

In August 1994, the Veteran was afforded a VA examination for pain at the incision site. The Veteran reported being treated for stomach problems and pains in his side from June 1993 to March 1994.

On a November 1997 report of medical examination for disability evaluation, the Veteran reported he developed a severe case of diarrhea which had been ongoing since 1993. Additionally, the Veteran reported having to use the bathroom almost after every meal and having dizzy spells and severe stomach pains.

In December 1997, the Veteran was afforded a Gulf War Examination. He reported having diarrhea since 1993. He reported having diarrhea 4-5 times a week with occasional blood in stool, lower abdominal cramps, and sometimes nausea. Physical examination of the abdomen revealed normal bowel sounds.

In a February 1998 VA stomach examination report, the examiner noted that in December 1997, the Veteran was examined, and his medical records were thoroughly reviewed. The examiner stated the following: 

I was unable to find any operative note or clinical evaluation that occurred before the Veteran's appendix was removed while he was in Saudi Arabia. Since that time, the Veteran has had intermittent abdominal pain, which has continued since the removal of a neuroma of the appendectomy scar. 

The Veteran states that he has nausea on an almost daily basis without vomiting, frequent urgency to defecate following a meal, periods of discomfort lasting approximately 4 hours, and on rare occasions small amounts of blood from rectum. He was sent to the Gulf in December 1990 and shortly after the appendectomy he was evacuated to the United States.

The examiner diagnosed the Veteran with intermittently tender appendectomy scar and intermittent abdominal pain consistent with irritable bowel syndrome or partial intestinal obstruction. The examiner found "no evidence of any disease process that would have been caused by any environmental agent encountered in the Persian Gulf."

The June 1998 rating decision dated denied service connection for IBS or partial intestinal obstruction (claimed as stomach pain with diarrhea as due to undiagnosed illness) because the Veteran's service medical records were negative for complaints or treatment for a stomach condition. The RO noted that upper gastrointestinal and small bowel studies were within normal limits. The Veteran did not file a notice of disagreement (NOD).

In July 1998 and in September 1998, the Veteran requested reconsideration of his claim for service connection for IBS. His written statements and all new VAMC treatment records were reviewed. However, in the February 1999 rating decision, service connection for IBS was denied because there was still no evidence that IBS was shown in service or due to undiagnosed illness. The RO noted that additional evidence showing current existence did not relate the condition to service or any event in service. 

The Veteran was notified of the decision in March 1999. There is no evidence of record that can be reasonably construed as an NOD within a year of notification of the decision. Although additional treatment records and various lay statements were associated with the claims file within a year of the February 1999 rating decision, none of the evidence was new and material. Therefore, as no new and material evidence or a notice of disagreement was submitted within a year of the February 1999 rating decision, the decision became final.

In the November 2022 Memorandum Decision, the Court concluded that the Board erred when it failed to explain not only how the December 1997 VA examination did not establish that the appellant not only had in-service stomach complaints related to his now service-connected IBS, but also why there was no CUE in the June 1998 rating decision based on the RO's treatment of this opinion. Although the examiner provided a negative opinion regarding an undiagnosed illness caused by the appellant's service in the Persian Gulf, the opinion "overall appears undeniably favorable." The Court went on to find that the 1997 examiner clearly stated that the Veteran's current stomach disability began after his in-service appendectomy, and the RO simply misread the findings of the December 1997 VA examination. The remaining question for the Board, then, is whether this misreading amounted to CUE. 

As the Court has determined that the RO committed an undeniable mistake of fact, the only question for the Board is whether this mistake of fact manifestly changed the outcome of the
 1998 rating decision based on the RO's treatment of this opinion. Although the examiner provided a negative opinion regarding an undiagnosed illness caused by the appellant's service in the Persian Gulf, the opinion "overall appears undeniably favorable." The Court went on to find that the 1997 examiner clearly stated that the Veteran's current stomach disability began after his in-service appendectomy, and the RO simply misread the findings of the December 1997 VA examination. The remaining question for the Board, then, is whether this misreading amounted to CUE. 

As the Court has determined that the RO committed an undeniable mistake of fact, the only question for the Board is whether this mistake of fact manifestly changed the outcome of the decision. If, according to the Court, the 1997 VA examiner established a diagnosis, an in-service incurrence, and nexus, then the elements of service connection were clearly met. There is no other evidence of a nexus of record that the RO could have afforded more probative value, and no discernable reason from the record for the opinion to be determined to lack credibility or probative value. Thus, there being a diagnosis, an in-service incurrence, and nexus established by a probative examination report, the mistake of fact unquestionably changed the outcome of the decision. 

Having established CUE in the June 1998 rating decision, revision is warranted for this decision and the February 1999 decision, effectively establishing an earlier effective date for service connection for IBS back to August 28, 1997. The claim is granted. 

 

 

R. COSTELLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Carroll, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.