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