Entitlement to service connection for pancreatitis is granted on the basis of aggravation of a preexisting disorder.
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Citation Nr: 19181614 Decision Date: 10/28/19 Archive Date: 10/28/19 DOCKET NO. 16-10 788 DATE: October 28, 2019 ORDER Entitlement to service connection for pancreatitis is granted on the basis of aggravation of a preexisting disorder. Entitlement to service connection for a lumbar spine disability is granted on the basis of aggravation of a preexisting disorder. FINDINGS OF FACT 1. The appellant’s current pancreatitis is due to aggravation of a preexisting disorder during a period of active duty for training (ACDUTRA) in March 1997. 2. The appellant’s current lumbar spine disability is due to aggravation of a preexisting disorder during a period of ACDUTRA in May 1985. CONCLUSIONS OF LAW 1. The criteria for service connection for pancreatitis have been met. 38 U.S.C. §§ 101, 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303 (2018). 2. The criteria for service connection for a lumbar spine have been met. 38 U.S.C. §§ 101, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the Coast Guard Reserves and Army Reserves, with a period of ACDUTRA in May 1985 and March 1, 1997 to March 14, 1997. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to service connection for pancreatitis and a lumbar spine disability. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The term “active military, naval, or air service” includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (2), (24); 38 C.F.R. § 3.6 (a). In other words, service connection is available for diseases or injuries incurred in or aggravated by ACDUTRA. As discussed below, there is evidence that each of the disabilities for which the appellant seeks service connection preexisted the relevant periods of ACDUTRA. For an ACDUTRA claimant to establish a service-connected disability based on aggravation of a preexisting condition sufficient to confer veteran status, the claimant must demonstrate “direct evidence both that a worsening of the condition occurred during the period of [ACDUTRA] and that the worsening was caused by the period of [ACDUTRA].” Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Unlike a claimant who served on active duty, a claimant who served only on ACDUTRA cannot rely on the presumptions of soundness or aggravation to demonstrate that a preexisting condition was aggravated in service. See Donnellan, 24 Vet. App. 167, 175 (2010). Rather, such claimants bear the burden of demonstrating that a claimed condition preexisted service and was aggravated therein, the latter of which can only be shown by submitting evidence of “a permanent increase in disability beyond the natural progress of that disease or injury during [the] period of [ACDUTRA].” Id. at 174-75. 1. Entitlement to Service Connection for Pancreatitis There is medical evidence that the appellant had pre-existing pancreatitis prior to his period of ACDUTRA in March 1997 and the appellant does not contend otherwise. The appellant had pre-service pancreatic symptoms in February 1997, including a visit to the emergency room on February 14, 1997, which is noted in his private clinical records. The appellant began a period of ACDUTRA on March 1, 1997. His lab reports indicate increasing levels of amalyase, with levels increasing from 213 on March 5, 1997 to 389 on March 7, 1997. Further, the Appellant’s ultrasound from March 7, 1997 indicated he had one pseudocyst on his pancreas, which also increased to three pseudocysts by March 18, 1997. There are conflicting medical opinions as to the whether the appellant’s pancreatitis was aggravated. In March 2015, the Appellant was afforded a VA examination. In the VA examination report, the physician opined that the Appellant’s pancreatitis in March 1997 was a natural progression of the appellant’s pre-existing condition, and that nothing during service caused aggravation of the condition. In May 2015, Dr. Bash, a private physician, provided an opinion. He opined that early treatment with antibiotics for pancreatitis reduces the need for surgery, and the Air Force Base’s treatment plan caused the Appellant’s condition to be made worse. Dr. Bash provided medical literature supporting this theory, entitled “Early treatment with Antibiotics Reduces the Need for Surgery in Acute Necrotizing Pancreatitis – a single-center randomized study” published by the Journal of Gastrointestinal Surgery. Further, Dr. Bash opined that the Appellant’s condition is permanent and is not expected to improve with time. Significantly, Dr. Bash pointed out that it would be unusual for a patient who received proper care for pancreatitis to have to be sent for emergency surgery only days after release, as seen in the Appellant’s case. In February 2016, the VA physician from the March 2015 VA examination provided an additional opinion. In her report, she opined that Dr. Bash’s opinion is incorrect, as antibiotics are not generally the proper treatment for pancreatitis. She additionally noted that Dr. Bash contended that the Appellant was not properly diagnosed, but the VA physician indicates, and the records show, a diagnosis of pancreatitis. She additionally repeated that pseudocysts are a well-known complication for pancreatitis, and that the Appellant’s development of pseudocysts are part of the natural progression of the disease. In a May 2016 medical opinion and response by Dr. Bash, the physician opined that had the Appellant received more aggressive treatment with antibiotics during his period of ACDUTRA while under the care of the Air Force Base, he would have delayed or entirely avoided his subsequent increase in pseudocysts which required emergency surgery. In the Appellant’s DRO hearing in May 2016, Dr. Bash testified further supporting his medical opinion. He stated that the Appellant’s increasing amylase levels should have been enough to show that he should not have been discharged from the hospital, and that use of antibiotics would have aided the Appellant’s recovery. The above reflects that the evidence is approximately evenly balanced as to whether there was a permanent increase in pancreatitis beyond the natural progress of that disease during the period of ACDUTRA. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for pancreatitis, on an aggravation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to Service Connection for Lumbar Spine Disability There is medical evidence that the Appellant had a pre-existing back injury prior to his period of ACDUTRA in May 1985 and the appellant does not contend otherwise. The Appellant’s military personnel records indicate he was scheduled for active duty training in May 1985, thus reflecting that this was a period of ACDUTRA. After experiencing increased back pain during a field exercise, the appellant sought treatment, which is documented in his service treatment records (STRs). In a May 1985 treatment note on the Veteran’s Chronological record of medical care in his service treatment records, he complained of a history of back pain and indicated he was currently under a physician’s care. In August 1994, the appellant was diagnosed with degenerative disc disease, and this was recorded in his service treatment records. In the Appellant’s DRO hearing testimony in May 2016, his representative presented a timeline of events. The representative argued the reason the Appellant’s claim has been denied is due to a line of duty determination which determined the Appellant’s back injury occurred prior to any period of ACDUTRA. However, as the representative argued, this line of duty determination did not provide an opinion as to aggravation, and only provided background on the origination of the back disability. However, this is nondeterminative in this case, as the Appellant is arguing aggravation during ACDUTRA, not that his back injury was caused exclusively by active duty training. Further, the Appellant testified that his back condition was aggravated after being asked to lift a heavy generator during his active duty training exercise. Prior to his period of ACDUTRA in May 1985, the appellant was seeking treatment for general back pain that was determined to be a soft tissue injury, and he distinctly remembers his pain increase during his training. The Appellant is competent to report the continuance of back symptoms in the years since his back injury in May 1985. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In May 2015, Dr. Bash provided a medical opinion. In his report, Dr. Bash opined that due to the increase in the Appellant’s back during a period of ACDUTRA, as documented in his STRs, he likely suffered from an inter-vertebral disc rupture, which is distinct from the mild back pain the Appellant was suffering from prior to May 1985. Further, Dr. Bash opined, with citation to medical literature from “Firestein: Kelley’s Textbook of Rheumatology, 8th Ed.,” that it is a well known medical principle that lifting and twisting injuries precipitate and accelerate the onset of the degenerative process of the spine. The textbook goes on to say that the most common history of severe low back pain stems from pain that is brought on immediately after injury, as seen in the Appellant’s case. In November 2016, the Appellant received a VA opinion. The VA physician opined that the Appellant’s injury in May 1985 was part of his pre-existing soft tissue injury reported in his medical records, and did not cause any further injury to his back. However, this opinion indicated that the Appellant provided no specific injury in his hearing testimony to account for his added injury in service, and did not consider the Appellant’s competent testimony concerning the active duty training exercises that caused a sharp increase in pain in his back. As this opinion does not reflect an accurate history of the injury, it is of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). In December 2016, the VA physician clarified her opinion, and stated that while the Appellant reported an injury in active duty training, this injury is not recorded in the Appellants STRs. This is incorrect. The Appellant’s STRs specifically indicate an increase of pain with onset during a field exercise during active duty training in May of 1985. As this does not reflect an accurate history, the VA physician’s opinion is still of little probative value. Id. In February 2018, Dr. Ellis provided an additional opinion on behalf of the Appellant. In his opinion, Dr. Ellis stated that it is more likely than not that the Appellant had an acute injury while on active reserves duty in May 1985, and that this injury caused increase stresses on the lumbar ligaments and lower lumbar vertebra disc structures, causing tearing of the muscles and ligaments. This ultimately caused narrowing of the discs and osteophytes and deranged discs in the back. The opinions of Dr. Ellis and Dr. Bash are of great probative value, as they rely upon an accurate history of the Appellant’s injury and provide support and explanations for their conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). For the foregoing reasons, the evidence is at least evenly balanced as to whether there was a permanent increase in low back disability beyond the natural progress of that disease during a period of ACDUTRA. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to service connection for the currently diagnosed lumbar spine disability is warranted on an aggravation basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Saracina, Associate 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.