Citation Nr: 0303462 Decision Date: 02/27/03 Archive Date: 03/05/03 DOCKET NO. 02-21 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to service- connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for irritable bowel syndrome (IBS), claimed as secondary to service-connected PTSD. (The issues of entitlement to service connection for drug and alcohol dependence and hepatitis C will be the subject of a later decision.) REPRESENTATION Appellant represented by: Robert Stevens Berry, Attorney at Law ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The veteran served on active duty from May 1967 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the veteran's claims for service connection for GERD, IBS, drug and alcohol dependence and hepatitis C. This decision only addresses the issues of service connection for GERD and IBS. Further development will be conducted on the issues of entitlement to service connection for drug and alcohol dependence and hepatitis C pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. See 38 C.F.R. § 20.903 (2002). After giving the notice to the veteran and reviewing any response to the notice, the Board will prepare a separate decision addressing the latter issues. The veteran is service-connected for PTSD which is currently rated as 70 percent disabling. He presently has a total rating for individual unemployability due to his service- connected psychiatric disorder. FINDINGS OF FACT 1. The veteran's chronic GERD did not have its onset during active service. 2. The veteran's chronic GERD has increased in severity as a result of episodic elevations of psychiatric symptomatology associated with his service-connected PTSD. 3. The veteran's chronic IBS did not have its onset during active service. 4. The veteran's chronic IBS has increased in severity as a result of episodic elevations of psychiatric symptomatology associated with his service-connected PTSD. CONCLUSIONS OF LAW 1. The grant of service connection is warranted for gastroesophageal reflux disese. 38 C.F.R. § 3.310(a) (2002); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The grant of service connection is warranted for irritable bowel syndrome. 38 C.F.R. § 3.310(a) (2002); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veterans Claims Assistance Act of 2000, implemented in 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The provisions of the VCAA and the implementing regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2001) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). We note that the RO has provided the veteran with notice of the VCAA in a Statement of the Case dated in October 2002, in which the VCAA-compliant duty to assist provisions of the revised version of 38 C.F.R. § 3.159 were discussed. The RO has provided the veteran with an explanation of how VA would assist him in obtaining necessary information and evidence. The appellant has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims of entitlement to service connection for GERD and IBS during the course of this appeal. Medical nexus opinions addressing the issues of entitlement to service connection for GERD and IBS have also been obtained and associated with the evidence. See Charles v. Principi, No. 01-1536 (U.S. Vet. App. Oct. 3, 2002). Finally, the veteran has not identified any additional, relevant evidence that has not otherwise been requested or obtained. He has been notified of the evidence and information necessary to substantiate his claims with respect to the issues of service connection for GERD and IBS, and he has been notified of VA's efforts to assist him. (See Quartuccio v. Principi, 16 Vet. App. 183 (2002).) As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating the aforementioned claims. For these reasons, further development of the claims of entitlement to service connection for GERD and IBS is not necessary to meet the requirements of 38 U.S.C.A. §§ 5103 and 5103A. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 2002). The standard of review for cases before the Board is as follows: when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 4.3 (2002). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a (claimant) need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. At 54. Factual Background and Analysis: Entitlement to service connection GERD and IBS, claimed as secondary to service- connected PTSD. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2002). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (2002). With chronic disability or disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307 (2002)) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of gastrointestinal symptoms in service will permit service connection for a chronic digestive system disorder, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2002). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2002). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2002). The veteran's service medical records show normal gastrointestinal findings on entrance examination in May 1967 and on separation examination in November 1968. His records show no treatment or diagnosis for a chronic gastrointestinal disorder during his period of active duty. VA examination in March 2002 shows that the veteran's medical history was reviewed and following examination he was diagnosed with gastroesophageal reflux disease and irritable bowel syndrome. The examining physician expressed the following medical opinion: "The veteran's (claims)-file was reviewed in its entirety. Questions being asked today. 'Are the veteran's acid reflux and irritable bowel syndrome secondary to the veteran's service connected PTSD?' It seems more likely than not when this veteran's PTSD symptomatology worsens, then his reflux will worsen along with his irritable bowel syndrome. He still gets daily constipation and diarrhea, which is on a constant basis and constantly revolving. When his mental symptoms worsen then his bowels will act up. These (symptoms) are most likely secondary to his PTSD." The medical evidence clearly shows that the onset of the veteran's chronic IBS or GERD did not begin prior to or during his period of active service which ended over three decades ago. IBS and GERD are not diseases which are recognized in the regulation 38 C.F.R. § 3.309 as being entitled to presumptive service connection if manifested to a compensable degree within one year after separation from active duty. Therefore, an award of service connection for a chronic gastrointestinal disability on a direct basis or on the basis of aggravation of pre-existing condition cannot be granted. The evidence also does not establish that service connection for the veteran's IBS and GERD may be granted on a secondary basis as the March 2002 nexus opinion provided by the VA examiner specifically states that it is the veteran's PTSD causes his gastrointestinal symptoms to worsen, but not that the psychiatric disability is the actual cause of the IBS and GERD. However, in the case of Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims (hereinafter referred to as the Court) presented an opinion in which it extrapolated that the term "disability," as used in 38 U.S.C.A. § 1110, refers to impairment of earning capacity and that such definition mandates that any additional impairment of earning capacity resulting from a disability which is already service- connected, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, shall be service-connected. Thus, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a nonservice-connected disability is proximately due to or the result of a service- connected disability, an award of compensation may be allowed for the degree of disability, but only that degree over and above the degree of disability existing prior to the aggravation. The circumstances of the present case meet the conditions contemplated by the Court in the Allen case. The medical evidence governing the outcome of this case is clear. The question of whether the episodes of PTSD cause an increase in the severity of the veteran's gastrointestinal disorders is a medical question that must be resolved by weighing the competent medical evidence. It is not a question for either the RO or the Board to resolve based on independent analysis of the record. For a dozen years, the law has been clear as to the significance of competent medical evidence in matters requiring medical judgment. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case a competent physician reviewed the record and conlcuded that the symptoms of PTSD caused an increase in the severity of the gastrointestinal disorders. Therefore, service connection must granted for IBS and GERD. ORDER Service connection for gastroesophageal reflux disease is granted. Service connection for irritable bowel syndrome is granted. G. H. SHUFELT Veterans Law Judge IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.