Citation Nr: 0811077 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 02-09 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diarrhea, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran had active service from December 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) from a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded the case to the RO in December 2003, August 2005 and October 2006. FINDINGS OF FACT 1. The veteran had active military service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. Diarrhea due to undiagnosed illness is attributable to service. CONCLUSION OF LAW Diarrhea due to undiagnosed illness was incurred in service. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. The record reflects that the originating agency provided the veteran with the notice required under the VCAA by letter dated in September 2000, prior to the initial adjudication of the claim. While the letter provided adequate notice with respect to the evidence necessary to establish entitlement to service connection, it did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. However, the veteran was subsequently provided notice pertaining to these latter two elements by letter dated in November 2006, prior to the issuance of a supplemental statement of the case (SSOC). Based on the foregoing, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In connection with the current appeal, appropriate examinations have been conducted and available service records and pertinent post service medical records have been obtained. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Factual Background The veteran served on active duty during the Gulf War. In an October 1991 outprocessing check list the veteran reported that he experienced diarrhea and/or vomiting while deployed. It was noted that the diarrhea lasted one month and was not treated. The remainder of the veteran's service medical records are devoid of any complaints, diagnoses or treatment for diarrhea. With the exception of the lower extremities, the veteran's separation examination showed normal results. The veteran filed a claim for diarrhea in May 2000. In a December 2000 VA outpatient treatment record the veteran reported "almost constant" diarrhea since March 1991. He also reported 2 to 3 loose bowel movements a day and some cramping. There was no BRBPR, melena, or unexplained weight loss or fever. The examiner noted that the veteran's condition did not appear to be related to the type of food he consumed (i.e., dairy). An assessment of chronic diarrhea was given. An air contrast barium enema in January 2001 showed terminal ileum was visualized and appeared normal. In a February 2001 examination the veteran reported digestion problems and said that he started having diarrhea in Saudi Arabia. The veteran reported that he was frequently on sick call and had gastric pain. It was noted during this examination that the veteran was scoped two weeks before the examination but the report was unavailable, according to the note on the compensation and pension request H. pylori was documented. It was further noted that the veteran was not aware of being found to have an ulcer. The veteran admitted to having postprandial regurgitation. The veteran reported nausea, but no vomiting. In a March 2006 compensation and pension examination, the veteran reported that he never received treatment for his diarrhea. He reported that he only has symptoms of diarrhea if he eats meat done on a charcoal grill. He also reported that hot spicy foods and alcohol causes him to sweat and become nauseous. It was noted that the veteran's son was developing similar symptoms but that stress may be the cause. It was noted that when the veteran left service he was 167 pounds but at that time he weighed 259. Examination showed no organomegaly, normal bowel sounds and no tenderness. ACBE was also normal. After reviewing the veteran's C-file, the examiner found that the veteran's current intermittent diarrhea, which he noted was related to food intolerance and required no treatment, did not seem to be caused by or a result of service. However, the examiner noted that the veteran reported diarrhea in service. The examiner further noted that the veteran's symptoms of diarrhea were rare and occasional and only related to ingestion of specific foods. The examiner noted that there was no objective medical indication that the veteran was suffering from diarrhea symptoms. The examiner noted that although the diarrhea could be due to allergy to foods she could not say for sure and that she was unable to ascribe a specific diagnosis. In a February 2007 VA compensation and pension examination, the veteran reported his diarrhea started in 1991 while in Iraq and that he continues to suffer from it. He reported 4 to5 bowel movements a day, loose stools and that he has noticed blood at times. He reported no mucus. The veteran reported that his diarrhea was worse when he drank alcohol, and ate red meat and slow cooked food. On such occasions, he reported that he gets explosive diarrhea, sweating and becomes pale. He also reported that he gets generalized crampy abdominal discomfort with the diarrhea. It was noted that the veteran had a good appetite, he gained 40 to 50 pounds in one year, and that he feels tired and fatigued all the time. The examination showed no liver disease, jaundice, LAD, HSM, masses, edema and free fluid. The examiner noted normal exam to terminal ileum. The veteran was given an assessment of chronic diarrhea since 1991 most likely irritable bowel syndrome, given the long history and weight gain. It was noted that the veteran had a history of thyroid abnormality which many need to be worked up further. ACBE was normal. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Compensation may be paid to a Persian Gulf veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more, following such service. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Service connection may be granted when the evidence establishes: (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. To qualify for compensation under these provisions, "Persian Gulf veteran" is defined as "a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The "Southwest Asia Theater of operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.117(d)(1) and (2) (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that there has been no assertion that these conditions are directly related to combat service. Therefore, the provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Analysis The veteran is seeking service connection for diarrhea, to include as due to undiagnosed illness. As will be shown below, the Board finds that the evidence supports the claim. The veteran has entered a claim for service connection for diarrhea. The evidence supports the claim. The Board has been presented with an in-service report of diarrhea and lay evidence of continuity of symptomatology. Recent medical evidence tends to establish that he still has diarrhea and that it may be due to food intolerance or irritable bowel syndrome, a disorder specifically listed as a qualifying chronic disability. 38 U.S.C.A. § 1117(a)(2)(B). Nothing in this case points to a definitive diagnosis. As such, the veteran either has an undiagnosed illness or a qualifying medically unexplained illness. Regardless, the result is the same and service connection is warranted. ORDER Service connection for diarrhea due to an undiagnosed illness is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs