Citation Nr: 0810270	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  05-09 603	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for intestinal pain, 
claimed as a gastric condition, to include claimed as due to 
undiagnosed illness.  


REPRESENTATION

Veteran represented by:  Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

Debbie A. Riffe, Counsel


INTRODUCTION

The veteran, who is the appellant, served on active duty from 
September 1988 to November 1995, which included a tour of 
duty in Southwest Asia during the Persian Gulf War.    

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision in January 2004 of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.  

In February 2008, the veteran appeared at a hearing before 
the undersigned Veterans Law Judge, who has been designated 
to make the final disposition of this proceeding for VA.  A 
transcript of that hearing is associated with the claims 
file.  At the hearing, the veteran submitted additional 
evidence in the form of updated VA outpatient records.  This 
evidence was submitted with a waiver of RO initial review of 
this evidence, in accordance with 38 C.F.R. § 20.1304.  

It is noted that in a previous rating decision in January 
1996, the RO denied service connection for intestinal pain.  
In the January 2004 rating decision, the RO determined that 
new and material evidence had not been received to reopen the 
veteran's claim of service connection for intestinal pain 
(claimed as a gastric condition); in the statement of the 
case and supplemental statements of the case, the RO denied 
the claim on the merits.  Ordinarily, the Board must make an 
independent assessment as to whether new and material 
evidence sufficient to reopen the veteran's claim has been 
received under 38 U.S.C.A. § 5108.  Barnett v. Brown, 83 F.3d 
1380 (Fed. Cir. 1996).  However, in circumstances wherein a 
change in law provides a new basis for entitlement to a 
benefit sought for which a claim has previously been denied 
(i.e., through the liberalization of the requirements for 
entitlement to that benefit), the veteran may obtain de novo 
review of that prior decision without having to meet the 
"new and material" evidence requirement.  Spencer v. Brown, 
17 F.3d 368 (Fed. Cir. 1994).  

In the present case, as the RO did not previously consider 
the law pertinent to claims by Persian Gulf War veterans 
based on undiagnosed illnesses (i.e., 38 U.S.C.A. § 1117; 
38 C.F.R. § 3.317), the Board will adjudicate the issue of 
service connection for intestinal pain, claimed as a gastric 
condition, without the veteran having to present "new and 
material" evidence. 
 

FINDINGS OF FACT

1. The veteran served in the Southwest Asia Theater of 
operations from October 1990 to April 1991.

2. There is no competent medical evidence showing that the 
veteran currently has intestinal pain or a gastric condition 
that is related to service or due to an undiagnosed illness 
that developed during the Persian Gulf War.


CONCLUSION OF LAW

Intestinal pain, or a gastric condition, is not due to 
disease or injury that was incurred in or aggravated by 
service, nor is it due to undiagnosed illness.  38 U.S.C.A. 
§§ 1110, 1117, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 
3.317 (2007).


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate the claim.  



Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claim, which information and evidence VA 
will obtain, and which information and evidence the claimant 
is expected to provide.  Under 38 C.F.R. § 3.159, VA must 
request that the claimant provide any evidence in the 
claimant's possession that pertains to the claim.  

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: 
1) veteran status; 2) existence of a disability; 3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must 
be provided to a claimant before the initial unfavorable 
adjudication by the RO.  Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

The RO provided VCAA pre- and post- adjudication notice by 
letters, dated in February 2003 and in March 2006.  The 
notice advised the veteran of what was required to prevail on 
his claim for service connection for a gastric condition to 
include as due to an undiagnosed illness; what specifically 
VA had done and would do to assist in the claim; and what 
information and evidence the veteran was expected to furnish.  
The veteran was informed that VA would obtain service 
records, VA records, and records of other Federal agencies, 
and that he could submit other records not in the custody of 
a Federal agency, such as private medical records, or with 
his authorization VA would obtain any such records on his 
behalf.  He was asked to submit any evidence, which would 
include any evidence in his possession, that pertained to the 
claim.  The notice included the provisions for the effective 
date of the claim and for the degree of disability 
assignable. 



As for content of the VCAA notice, the document substantially 
complied with the specificity requirements of Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (identifying evidence to 
substantiate a claim and the relative duties of VA and the 
claimant to obtain evidence), of Charles v. Principi, 16 Vet. 
App. 370 (2002) (identifying the document that satisfies VCAA 
notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) 
(38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 
19 Vet. App. 473 (notice of the elements of service 
connection claim). 

To the extent that the VCAA notice about the degree of 
disability assignable was provided after the initial 
adjudication, the timing of the notice did not comply with 
the requirement that the notice must precede the 
adjudication.  The procedural defect was cured as after the 
RO provided substantial content-complying VCAA notice the 
claim was readjudicated as evidenced by the supplemental 
statement of the case, dated in February 2007.  Mayfield 
v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error 
cured by adequate VCAA notice and subsequent readjudication 
without resorting to prejudicial error analysis.).

Duty to Assist

Relevant to its obligation to assist a claimant, VA has also 
made reasonable efforts to identify and obtain relevant 
records in support of the claim.  38 U.S.C.A. § 5103A (a), 
(b) and (c).  The veteran was afforded a hearing before the 
undersigned Veterans Law Judge in February 2008.  The RO has 
obtained the veteran's service medical records, VA medical 
records, and private medical records identified by the 
veteran, such as those from Scott & White Hospital and 
Clinic, dated from 1998.  He has not identified any other 
pertinent evidence for the RO to obtain on his behalf.  

Further, VA has not conducted medical inquiry in an effort to 
substantiate the claim.  38 U.S.C.A. § 5103A(d).  Further 
development in this respect is not required for the following 
reasons.  



While there are records of treatment for complaints of 
intestinal pain during service, there is no competent 
evidence of persistent or recurrent symptoms relative to the 
gastrointestinal system from the time of service to the 
present and there is no competent evidence of a current 
diagnosis referable to the gastrointestinal system.  In 
short, the evidence does not indicate that a disability 
manifested by intestinal pain may be associated with service.  
Under these circumstances, a medical examination or medical 
opinion is not required for the service connection claim 
under 38 C.F.R. § 3.159(c)(4).  

As there is no indication of the existence of additional 
evidence to substantiate the claim, no further assistance to 
the veteran is required to comply with the duty to assist.   


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Principles of Service Connection

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty or for aggravation of preexisting injury 
suffered or disease contracted in the line of duty.  38 
U.S.C.A. §§ 1110, 1131.  

Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred coincident with service, or if 
preexisting such service, was aggravated by service.  This 
may be accomplished by affirmatively showing inception or 
aggravation during service. 38 C.F.R. § 3.303(a).

Service connection may also be granted for disability shown 
after service, when all of the evidence, including that 
pertinent to service, shows that it was incurred in service.  
38 C.F.R. § 3.303(d).  

In order to establish service connection, there must be (1) 
medical evidence of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in-service incurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between the claimed in-service disease or 
injury and the current disability.  Hickson v. West, 12 Vet. 
App. 247, 253 (1999).  

Subject to various conditions, service connection may be 
granted for a disability due to undiagnosed illness of a 
veteran who served in the Southwest Asia Theater of 
operations during the Persian Gulf War.  Among the 
requirements are that there are objective indications of a 
qualifying chronic disability, which means a chronic 
disability resulting from an undiagnosed illness, a medically 
unexplained chronic multisymptom illness defined by a cluster 
of signs or symptoms (i.e., chronic fatigue syndrome, 
fibromyalgia, irritable bowel syndrome, or any other illness 
specified by the Secretary), or any diagnosed illness 
specified by the Secretary.  38 U.S.C.A. § 1117 (West 2002); 
38 C.F.R. § 3.317 (2007); 68 Fed. Reg. 34541 (June 10, 2003).

Signs or symptoms which may be manifestations of undiagnosed 
illness or medically unexplained chronic multisymptom illness 
include, but are not limited to fatigue, signs and symptoms 
involving the skin, headache, muscle pain, joint pain, 
neurological signs or symptoms, neuropsychological signs or 
symptoms, signs and symptoms involving the respiratory 
system, sleep disturbances, gastrointestinal signs or 
symptoms, cardiovascular signs or symptoms, abnormal weight 
loss, and menstrual disorders.  The illness must become 
manifest either during active service in the Southwest Asia 
theater of operations during the Persian Gulf War, or to a 
degree of 10 percent or more, under the appropriate 
diagnostic code of 38 C.F.R. Part 4, not later than December 
31, 2011.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; 71 Fed. 
Reg. 75669-75671 (December 18, 2006).

Further, by history, physical examination, and laboratory 
tests, the disability cannot be attributed to any known 
clinical diagnosis.  There must be objective signs that are 
perceptible to an examining physician and other non-medical 
indicators that are capable of independent verification.  
There must be a minimum of a 6-month period of chronicity.  

There must be no affirmative evidence that relates the 
undiagnosed illness to a cause other than being in the 
Southwest Asia Theater of operations during the Persian Gulf 
War.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  If signs or 
symptoms have been medically attributed to a diagnosed rather 
than undiagnosed illness, the Persian Gulf War presumption of 
service connection does not apply.  38 C.F.R. § 3.317; 
VAOPGCPREC 8-98 (August 3, 1998), published at 63 Fed. Reg. 
56,703 (1998).

During the pendency of this appeal, the law affecting 
compensation for disabilities occurring in Persian Gulf War 
veterans was amended.  38 U.S.C.A. §§ 1117, 1118 (West 2002).  
These changes were applied retroactively, effective on March 
1, 2002.  Essentially, these changes revised the term 
"chronic disability" to "qualifying chronic disability," 
and included an expanded definition of "qualifying chronic 
disability" to include (a) an undiagnosed illness, (b) a 
medically unexplained chronic multi-symptom illness (such as 
chronic fatigue syndrome, fibromyalgia, and irritable bowel 
syndrome) that is defined by a cluster of signs or symptoms, 
or (c) any diagnosed illness that the Secretary determines, 
in regulations, warrants a presumption of service connection.  
38 U.S.C.A. § 1117(a)(2)(B) (West 2002).  Therefore, 
adjudication of the veteran's Persian Gulf service connection 
claims in the present case must include consideration of both 
the old and the new criteria.  The veteran was notified of 
the amendments to the new criteria in the supplemental 
statement of the case dated in February 2007.  

Analysis

The veteran claims that the onset of intestinal pains was 
during service.  In an initial application for disability 
benefits received in November 1995, he indicated that he was 
hospitalized twice for such pains.  In a claim received in 
November 2002, he indicated that his gastric condition began 
in 1991 and 1993.  He testified that his intestinal pain 
symptoms persisted after service discharge, but that he has 
not been worked up fully for it for a couple of years and his 
pains have not been so severe that he has required 
hospitalization.  He described his pains as a "balled up 
feeling" in his stomach, and stated that when he was last 
worked up for his condition after service he underwent 
testing on his lower gastrointestinal tract.  

Service department records show that the veteran's active 
service included a tour of duty in the Southwest Asia Theater 
of operations during the Persian Gulf War from October 1990 
to April 1991.  Service medical records show that at the time 
of a Southwest Asia demobilization/redeployment medical 
evaluation in June 1991, the veteran denied experiencing any 
stomach or abdominal pain.  On a report of medical history in 
June 1991, it was noted that the veteran had spent three days 
in Darnall Army Hospital that month with complaints of chest 
and stomach pains (there was no documentation in the 
records).  He was to follow up on sick call on an as-needed 
basis.  In December 1993, the veteran complained of pain 
after physical training.  The diagnosis was abdominal wall 
pain.  Two CT scans of the abdomen in December 1993 did not 
show any acute abdominal pathology and were within normal 
limits.  The veteran had been admitted to the hospital for a 
day in December 1993, and the discharge diagnosis was ileus 
of unknown etiology.  In January 1994, the veteran returned 
with complaints of vague abdominal/pelvic/back pain.  An 
upper gastrointestinal series in January 1994 identified no 
significant abnormalities.  

At the time of the veteran's separation physical examination 
in September 1995, there were no current complaints or 
clinical findings referable to the abdomen.  On a report of 
medical history, the veteran indicated that he had had 
stomach or intestinal trouble.  He stated that he was treated 
at Darnall Army Hospital twice for an intestinal virus.  He 
stated that he was presently in good health and not taking 
any medications.  

After service, medical records from Scott & White Hospital 
and Clinic dated beginning in 1998 do not show treatment for 
intestinal pain or a chronic gastrointestinal condition.  
Records dated in June 1998 and July 1998 indicate that the 
veteran had a history of abdominal pain that necessitated 
hospitalization during service, and that on examination he 
described occasional abdominal discomfort.  In June 1998, the 
diagnosis was that of an essentially normal examination.  

In July 1998, there was no diagnosis furnished, but an 
examination conducted a week later showed that the abdomen 
was completely within normal limits with perhaps a little 
mild tenderness in the right lower quadrant.  The impression 
at that time was probable mild prostatitis.  

Service medical records dated in July 1999 indicate that the 
veteran underwent a physical examination for purposes of 
Chapter 2/enlistment.  In a report of medical history at that 
time, the veteran denied having stomach or intestinal 
trouble.  He indicated that he was in good health and not 
taking any medications.  On a physical examination at that 
time, the abdomen was clinically evaluated as normal.  

In medical records from Scott & White Hospital and Clinic 
dated in October 2001, the veteran was seen with a complaint 
of persistent right lower quadrant abdominal discomfort; the 
impression was prostatitis.  

In response to the RO's February 2003 letter, notifying the 
veteran about the evidence needed to establish service 
connection for disabilities based on Gulf War service, the 
veteran in a February 2003 statement described various 
symptoms related to his service in Desert Storm, none of 
which related to intestinal pain or a gastric condition.  

At the time of a VA Gulf War examination in October 2003, 
there were no complaints, clinical findings, or diagnosis 
pertinent to intestinal pain or a gastric disability.  In 
January 2004, the veteran was seen at the VA emergency room, 
mainly because he was unable to sleep but had some pain in 
his right side that was worse with movement.  On examination, 
pain was reproducible in the lateral abdominal musculature 
with movement.  The assessment included myofacial pain.  
Subsequent VA outpatient records do not show complaints or 
treatment for intestinal pain or a gastric condition.  
Rather, the records show that the veteran had a medical 
history of such ailments as hiatal hernia and benign 
prostatic hypertrophy.  In January 2006, a record indicated 
that he had gastroesophageal reflux disease (GERD), which was 
stable.  

As the record now stands, there is no satisfactory proof, on 
any clinical record, that the veteran has a current diagnosis 
of a disability manifested by intestinal pain or a 
stomach/gastric disorder.  In that regard, based on the 
statements and testimony of the veteran, the Board is not 
considering his GERD, which was diagnosed on a 2006 VA 
outpatient record and for which the veteran took medication, 
as part of the claimed gastric disorder.  This is so because 
the veteran did not describe any reflux problem as related to 
his claimed gastrointestinal problems, or specify that this 
upper gastrointestinal condition was part of his claimed 
intestinal and/or stomach condition.  His statements and 
testimony pertained to the stomach and lower gastrointestinal 
tract.  He may, however, file a claim for VA disability 
compensation on account of GERD at any time. 

In the absence of medical evidence of a current intestinal or 
stomach/gastric disorder, service connection cannot be 
granted.  38 U.S.C.A. §§ 1110, 1131; 38C.F.R. § 3.303.  A 
condition or injury occurred in service alone is not enough; 
there must be a current disability resulting from that 
condition or injury.  Chelte v. Brown, 10 Vet. App. 268, 271 
(1997).  In the absence of proof of a present disability, 
there can be no valid claim.  Brammer v. Derwinski, 3 Vet. 
App. 223, 225 (1992).

The provisions of an undiagnosed illness, pertinent to a 
veteran of the Persian Gulf War under 38 U.S.C.A. § 1117 and 
38 C.F.R. § 3.317(a)(1), are applicable to this case, where 
the veteran served in Southwest Asia from October 1990 to 
April 1991 and claims episodes of intestinal pain that began 
after Desert Storm.  As the occasional episodes of abdominal 
discomfort after service were identified by Scott & White 
Hospital and Clinic with the known clinical diagnosis of 
prostatitis (a non-gastrointestinal condition), it does not 
constitute an undiagnosed illness due to the veteran's Gulf 
War service.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a).  
Further, there must be objective evidence of gastrointestinal 
signs or symptoms, which may be manifestations of undiagnosed 
illness, for a minimum of a 6-month period of chronicity.  



Aside from the fact that there is no current medical evidence 
of intestinal pain or a gastric condition, there is no 
medical evidence from the time of service to the present 
showing that the veteran's claimed intestinal pain and 
gastric condition is actually chronic.  In short, the 
application of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 does not 
serve to support the veteran's claim.  

To the extent that the veteran relates intestinal pain or his 
gastric condition to service, where as here the determinative 
issue involves a question of a medical causation, competent 
medical evidence is required to substantiate the claim.  A 
layperson is competent to identify a medical condition where 
the condition is a simple one, such as a broken leg as 
opposed to a form of cancer, but a lay person is not 
qualified through education, training, and expertise to offer 
an opinion on medical causation, which is not capable of lay 
observation.  38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 
F.3d 1372 (Fed. Cir. 2007).  

In this case, the veteran is competent to describe intestinal 
pain during and after service.  However, his statements and 
testimony are not competent evidence on the question of 
medical causation.  The question in this case involves 
medical knowledge of accepted medical principles pertaining 
to the history, manifestation, clinical course, and character 
of a gastrointestinal condition, and the veteran's lay 
observations do not suffice as competent medical evidence.  

As the Board may consider only independent medical evidence 
to support its findings as to a question involving medical 
causation, which are not capable of lay observation, and as 
there is no favorable medical evidence to support the claim 
as articulated above, the preponderance of the evidence is 
against the claim of service connection for intestinal pain, 
claimed as a gastric condition, and the benefit-of-the-doubt 
standard of proof does not apply.  38 U.S.C.A. § 5107(b).  







ORDER

Service connection for intestinal pain, claimed as a gastric 
condition, to include claimed as due to undiagnosed illness, 
is denied.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs