Citation Nr: 1211758	
Decision Date: 04/02/12    Archive Date: 04/11/12

DOCKET NO.  05-36 187	)	DATE
	)
	)
  
On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an increased rating for residuals of a sternoclavicular dislocation, rated as 10 percent disabling. 

2.  Entitlement to service connection for fatigue, to include as due to undiagnosed illness.  

3.  Entitlement to service connection for headaches, to include as due to undiagnosed illness.

4.  Entitlement to service connection for memory problems, to include as due to undiagnosed illness.

5.  Entitlement to service connection for diverticulosis. 

6.  Entitlement to service connection for arthritis of the spine. 

7.  Entitlement to service connection for anxiety, to include as secondary to irritable bowel syndrome.

8.  Entitlement to service connection for gastroesophageal reflux disease (hereinafter "GERD"), to include as secondary to irritable bowel syndrome. 

9.  Entitlement to service connection for gastrointestinal upset and related symptoms (other than those related to diverticulosis and GERD), to include as secondary to pyridostigmine medication.  

10.  Whether new and material evidence has been received to reopen service connection for a sleep disorder, to include as due to undiagnosed illness. 

11.  Entitlement to service connection for depression, to include as secondary to irritable bowel syndrome and a sleep disorder. 

12.  Entitlement to an increased initial rating for irritable bowel syndrome.  
  

WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel


INTRODUCTION

The Veteran served on active duty from April 1988 to September 1988 and November 1990 to July 1991.  He was awarded the Southwest Asia Service Medal and Combat Action Ribbon with documented service as a United States Marine in Southwest Asia from January 17, 1991, to May 10, 1991. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  

In December 2011, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e).  During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO.  A transcript of this hearing is of record. 

This case is before the Board following receipt of four separate substantive appeals, the first received in October 2005 with respect to (as listed on the Title Page) issues 1 through 5, the second in October 2006 with respect to issues 6 through 8, the third in March 2007 with respect to issues 9 and 10 and the last in April 2010 with respect to issue 11.  

The issue of service connection for cervical spine disability was also on appeal, but this benefit was granted by rating decision in July 2010.

With respect to issue 12, at the December 2011 hearing before the undersigned, the Veteran requested an increased initial rating for irritable bowel syndrome, a condition for which service connection was granted by a November 2011 rating decision.  As such, the proper course of action is to remand the issue to the RO for the completion of a statement of the case.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  Thus, the issue of entitlement to an increased rating for irritable bowel syndrome is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
 

FINDINGS OF FACT

1.  The Veteran has credibly reported continuity of symptomatology associated with fatigue, headaches, problems with memory, diverticulosis, psychiatric problems, GERD, and sleep problems since service. 

2.  Medical evidence of record has linked psychiatric and resultant cognitive problems to irritable bowel syndrome.  

3.  Official service department records document that the Veteran was treated with pyridostigmine tablets following exposure to noxious fumes from oil well fires in Kuwait, and competent evidence indicates headaches and reflux are side effects of this medication. 

4.  Symptoms of diverticulosis are not distinguishable from those attributed to irritable bowel syndrome and medical evidence of record suggests that GERD is due to the same common gastrointestinal disturbance associated with the Veteran's irritable bowel syndrome.   

5.  By way of a statement received in September 2008, the Veteran withdrew his appeal with respect to the issues of entitlement to an increased rating for residuals of a sternoclavicular dislocation, entitlement to service connection for gastrointestinal upset and related symptoms (other than those related to diverticulosis and GERD), to include as secondary to the pyridostigmine medication, and entitlement to service connection for arthritis of the spine.   


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in favor of the Veteran, the Veteran has fatigue, headaches, memory problems, diverticulosis, a psychiatric disorder to include anxiety and depression, GERD, and a sleep disorder due to service or service connected irritable bowl syndrome.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2011). 

2.  The criteria for withdrawal of a substantive appeal by the Veteran with respect to the issues of entitlement to an increased rating for residuals of a sternoclavicular dislocation, entitlement to service connection for gastrointestinal upset and related symptoms (other than those related to diverticulosis and GERD), to include as secondary to pyridostigmine medication, and entitlement to service connection for arthritis of the spine have been met.  38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.202, 20.204 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 VA has issued regulations implementing the VCAA.  38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326.  Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that this law does not preclude the Board from adjudicating the issues involving the Veteran's claims adjudicated below.  This is so because the Board is taking action favorable to the Veteran in the decision below.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

II.  Fatigue, Headaches, Memory Problems, Diverticulosis, Anxiety, GERD, Sleep Disorder, Depression,

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the 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(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection may also be granted for disability which is proximately due to or the result of service-connected disability.  38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected.  Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(b). 

The Board notes that 38 C.F.R. § 3.310, above, the regulation which governs claims for secondary service connection, was amended during the pendency of this claim and appeal.  71 Fed. Reg. 52,744 (Sept. 7, 2006).  Although it was expected that the intended effect of the amendment was to conform VA regulations to the Allen decision, the regulatory amendment effectively resulted in a change in the law.  In this regard, while the overall intention of the amendment to 38 C.F.R. § 3.310(b)  was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted.  In addressing the imposition of this new evidentiary requirement, the regulatory comments cite to 38 U.S.C.A. § 501 as the supporting authority, and not Allen.  See 71 Fed. Reg. at 52,744-45.  The present case predates the regulatory change.  Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of secondary service connection may be made. 

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, 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 Veteran contends that he experiences symptomatology meeting the criteria for an undiagnosed illness under 38 C.F.R. § 3.317.  Service connection may be established for a chronic disability manifested by certain signs or symptoms which became 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 not later than December 31, 2011, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1); 71 FR No. 242, pp. 75669-75671 (December 18, 2006).  Consideration of a Veteran's claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. 

Manifestations of an undiagnosed illness include, but are not limited to, fatigue, skin lesions, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  See 38 C.F.R. § 3.317(b).  Compensation availability has been expanded to include 'medically unexplained chronic multisymptom illness,' such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome, as well as any diagnosed illness that the Secretary determines by regulation to be service-connected.  See Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-1-3, 115 Stat. 976 (2001). 

A 'Persian Gulf Veteran' is one who served in the Southwest Asia Theater of operations during the Persian Gulf War.  See 38 C.F.R. § 3.317.  As indicated previously, there is official service department documentation that the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War.  As such, he is a Persian Gulf Veteran as defined by 38 C.F.R. § 3.317.  

A 'qualifying chronic disability' for the purpose of this regulation includes: (A) an undiagnosed illness; (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi- symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection.  38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i).  For purposes of this regulation, signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving skin, (3) headache, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuro-psychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper and lower), (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders.  Objective indications of a chronic disability include both 'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States.  38 C.F.R. § 3.317(a)(2)(5).  With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service.  Gutierrez v. Principi, 19 Vet. App. 1 (2004). 

Compensation may be paid under 38 C.F.R. § 3.317 for disability that cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis.  The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8-98.  When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Codes.  Stankevich v. Nicholson, 19 Vet. App. 470,472 (2006).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, (Fed. Cir. 2007).  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007).

With the above criteria in mind, the facts will be summarized.  In this regard, although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  As such and given the voluminous evidence contained in the Veteran's multiple claims files, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on each claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  
 
The service treatment reports do not reflect any evidence of the conditions for that are the subject of this decision.  However, a service treatment report dated in June 1991 noted that pyridostigmine tablets were provided to the Veteran following his exposure to noxious fumes from oil well fires in Kuwait.  It was indicated that this medication was not at that time approved by the Food and Drug Administration.  

From as early as the filing of claims for service connection in 1996 and continuing until the time of his sworn testimony to the undersigned in December 2011, the Veteran as asserted that he has had continuing problems with such symptoms as memory loss, fatigue, restless sleep, and diarrhea.  With respect to diarrhea, service connection was ultimately granted for irritable bowel syndrome by a November 2011 rating decision, with this decision noting that as the condition was not shown during service, the grant of service connection was "on the basis of presumption," presumably those codified at 38 C.F.R. § 3.117 set forth above. 

The claims for service connection filed in 1996 were initially denied by a November 1997 rating decision denying service connection for, in pertinent part, fatigue, memory problems, diverticulitis and a sleep disorder.  No new and material evidence was received within one year, and the Veteran did not file an appeal to this decision; as such, it is final.  38 U.S.C.A. § U.S.C.A 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997).  As a general rule, such final decisions may only be reopened if new and material evidence is received.  38 U.S.C.A. § 5108; see Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).  

Although it appears that the RO reopened the claims for service connection for fatigue, memory problems and diverticulosis based on amendments to the laws concerning presumptive Gulf War disabilities enacted since the November 1997 rating decision, the Board, it is arguable that these should be considered new claims in light of the liberalizing law.  See generally Spencer v. Brown, 4 Vet. App. 283 (1993).  

Turning to a description of the evidence, initially that which is positive to the claims on appeal, a report from a VA neuropsychologist completed in November 2004 resulted in a diagnosis of adjustment disorder with mood disturbance and the following commentary:  

This evaluation cannot entirely rule out other contributing factors to cognitive complaints . . . It is also noted that IBS (irritable bowel syndrome) is often associated with psychosocial difficulties, and may be contributing to decreased level of functioning and cognitive complaints as well.  

Another VA outpatient treatment report dated in September 2007 noted a conclusion that the Veteran's nausea, diarrhea, and fatigue were related to irritable bowel syndrome.  With specific respect to GERD, an April 2008 VA outpatient treatment report noted that this condition along with irritable bowel syndrome "could possibly stem from the same common disturbance of the GI musculature."  

The Veteran also submitted medical literature, to include from the Mayo clinic, noting that irritable bowel syndrome can lead to depression and stress.  In this regard, the Veteran has asserted that he has had problems with stress and sleeping due to missing work due to irritable bowel syndrome, and an extract from the Mayo clinic indicated that this condition is "one of the leading causes of lost work and school time.  Mayo Clinic Family Health Book, 3rd Edition, P. 879. 

With respect to the contentions regarding pyridostigmine tablets being prescribed during service as a cause of some of the disabilities at issue, the Veteran has submitted evidence from the Food and Drug Administration and the Myasthenia Gravis Foundation of America indicating that side effects of pyridostigmine can include headaches and gastrointestinal complaints to include reflux.  Less probative but additional positive evidence is of record in the form of commentary from the Veteran's community and others discussing the link between exposure to oil well fires in Kuwait, as well as the prescription therein of agents such as pyridostigmine, and illnesses typical of "Persian Gulf Syndrome."  

The record also includes negative medical evidence weighing against the Veteran's claims, to include reports from an April 2007 VA psychiatric examination that, while diagnosing the Veteran with adjustment disorder with depressed mood, found that this condition was not caused by or aggravated by a service connected disability, to include his irritable bowel syndrome.  This examiner found that the Veteran's "sleep disorder/insomnia" was a symptom of his adjustment disorder with depressed mood and was not due to an undiagnosed illness.  

A VA "Chronic Fatigue Syndrome" examination conducted in April 2007 resulted in the conclusion that the Veteran's gastrointestinal complaints were secondary to irritable bowel disease and GERD.  The examiner noted that there were no findings to suggest persistent diverticulitis and no recorded treatment for an exacerbation of diverticulitis since the condition was diagnosed in 1997.  He noted that as diverticular disease was a "diagnosed illness," it was not caused by an undiagnosed illness, and that since there were no exacerbations of diverticulitis documented, there was "no basis to say that irritable bowel syndrome h[a]s worsened the diverticulitis."  The examiner also concluded that the Veteran did not have, based on the results of the examination on that day, a separate gastrointestinal condition that is related to pyridostigmine.  Finally, the examiner concluded that GERD was not caused by or worsened by irritable bowel syndrome.  

With respect to chronic fatigue syndrome, the examiner who conducted the above April 2007 examination noted that the Veteran had complaints of fatigue but did not meet the criteria for chronic fatigue syndrome.  He felt the Veteran's fatigue was secondary to poor sleep which was more likely than not secondary to depression and not an undiagnosed illness.  

The Veteran has asserted, to include at the hearing before the undersigned, that he has had continual symptomatology since service associated with fatigue, headaches, memory problems, gastrointestinal problems, psychiatric problems and sleep problems.  The Veteran is competent to assert such "lay observable" symptoms.  See Washington, Davidson, supra.  Supporting these assertions of the Veteran are statements received in June and August 1996 by an individual who worked with the Veteran that indicated the Veteran had problems with memory that interfered with his ability to function at his place of employment.  In addition, June and August 1996 statements submitted by a girlfriend of the Veteran, who reported that she had know the Veteran for several years prior to that time, attested to daily problems with loss of memory, fatigue, "constant" diarrhea, and difficulty sleeping.  A July 2007 statement from a friend of the Veteran attested to his having headaches, intestinal distress, difficulty in concentration, and having to make frequent trips to the bathroom.  He also described a change in the Veteran's demeanor from that of a "happy-go-lucky attitude" to one of frequent discouragement due to his not being able to participate in events such as going to long movies with others. 

Given the consistent description of relevant symptomatology from the Veteran and the corroboration of such symptomatology from others as credited above, the Board finds the Veteran's descriptions of continuity of symptomatology since service to be credible.  He has also, to include in sworn testimony to the undersigned, attributed his fatigue, difficulty with memory, psychiatric problems and problems with sleeping to his irritable bowel syndrome, and it would be within the competence of an individual to assert that the stress associated with having to use the bathroom frequently, loss of work, embarrassment, etc. from irritable bowel syndrome could lead to psychiatric problems and loss of sleep with resultant fatigue and cognitive impairment such as difficulty with memory.  Moreover, medical evidence of record supporting the Veteran's assertions has been submitted in the form of the above referenced literature from the Mayo clinic, noting that irritable bowel syndrome can lead to depression and stress and the loss of time from work, the conclusion by the VA examiner in November 2004 noting that irritable bowel syndrome could not be ruled out as contributing to his psychosocial and cognitive difficulties and decreased level of functioning, and the conclusion contained in the September 2007 outpatient treatment report that the Veteran's fatigue was due to irritable bowel syndrome.  

Unless the preponderance of the evidence is against the claim, it cannot be denied.  In this case, while there is some negative evidence, the Board finds that the positive evidence as described above places the positive and negative in relative balance as to whether the Veteran has psychiatric and related problems that are caused by or aggravated by his irritable bowel syndrome.  Thus, without finding error in the RO's action, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that service connection for a psychiatric disability claimed to be manifested by fatigue, memory problems, anxiety, depression, and sleep problems may be granted as secondary to irritable bowel syndrome.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

With respect to headaches, while the Veteran may not be competent to attribute this condition to in-service symptomatology or his irritable bowel syndrome, the Veteran has credibly reported continuous problems with headaches since service and submitted supporting medical evidence from the Food and Drug Administration linking headaches to pyridostigmine.  Thus, as the service treatment reports document that the Veteran was provided with pyridostigmine following his exposure to oil well fires, and there being no competent evidence of record indicating that the Veteran does not have headaches as a result of this medication, the Board will again resolve all reasonable doubt in the Veteran's favor and conclude that service connection for headaches may be granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

With respect to diverticulosis, while the Board recognizes that the VA examiner who conducted an April 2007 VA examination found the condition to not have been present since 1997, June 2009 esophagogastroduodenoscopic findings were compatible with duodenitis, and a colonoscopy performed at that time showed a few diverticula with mixed openings.  It is also noted that the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (hereinafter Ratings Schedule), provides that diverticulosis is to be rated as for irritable colon syndrome, dependent on the primary disability picture.  38 C.F.R. §  4.114, Diagnostic Code 7327.  This fact suggests a clinical overlap with the Veteran's irritable bowel syndrome such that the Board would be precluded from differentiating symptomatology attributed to diverticulosis from that related to the service connected irritable bowel syndrome.  Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136 (1996)).  As such, the Board has resolved all reasonable doubt in favor of the Veteran and finds that the service connected disability attributable to irritable bowel syndrome should included diverticulosis.  As such, service connection for diverticulosis is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

With respect to GERD, while the Board has considered the conclusion following the April 2007 VA examination that this condition was not caused by or worsened by irritable bowel syndrome, and that the Veteran did not have a separate gastrointestinal condition that is related to pyridostigmine, an April 2008 VA outpatient treatment report noted that the Veteran's GERD "could possibly stem from the same common disturbance of the GI musculature" as the Veteran's irritable bowel syndrome.  The Board finds the April 2008 VA outpatient treatment report, in combination with the evidence of record from the Food and Drug Administration specifically indicating that reflux can be a side effect of Pyridostigmine, places the probative weight of the positive and negative evidence as to whether service connection my be granted for GERD in relative balance.  In short therefore, service connection for GERD is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.
 
III.  Withdrawn Claims 

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204(c).  Here, the Veteran indicated in a statement received in September 2008 that he wished to withdraw his appeal with respect to 
the issues of entitlement to an increased rating for residuals of a sternoclavicular dislocation, entitlement to service connection for gastrointestinal upset and related symptoms (other than those related to diverticulosis and GERD for which service connection has been granted by this decision) to include as secondary to the pyridostigmine medication, and entitlement to service connection for arthritis of the spine.  As such, there remain no allegations of errors of fact or law for appellate consideration with respect to the issue of entitlement to an increased rating for residuals of a sternoclavicular dislocation, entitlement to service connection for gastrointestinal upset and related symptoms (other than those related to diverticulosis and GERD), to include as secondary to the pyridostigmine medication, and entitlement to service connection for arthritis of the spine, and the appeal with respect to these issues is dismissed.


ORDER

The claims for an increased rating for residuals of a sternoclavicular dislocation, for service connection for arthritis of the spine, and for service connection for gastrointestinal upset and related symptoms (other than those related to diverticulosis and GERD), to include as secondary to pyridostigmine medication are dismissed.  

Entitlement to a service connection for a psychiatric disability claimed to be manifested by fatigue, memory problems, anxiety, sleep problems, and depression, is warranted as secondary to irritable bowel syndrome.  Entitlement to service connection for headaches is warranted.  Entitlement to service connection for diverticulosis is warranted.  Entitlement to service connection for GERD is warranted.  To this extent, the appeal is granted. 



REMAND

As indicated in the Introduction, the Veteran at the December 2011 hearing before the undersigned requested an increased rating for irritable bowel syndrome, a condition for which service connection was granted by a November 2011 rating decision.  The written transcript of such testimony effectively constitutes a notice of disagreement with that aspect of the November 2011 rating decision that assigned the initial rating for irritable bowel syndrome.  As such, the proper course of action is to remand the issue to the RO for the completion of a statement of the case.  Manlincon, supra.  Accordingly, the case is REMANDED for the following action:

The RO should issue a statement of the case and notification of the appellate rights with respect to the issue of entitlement to an increased initial rating for irritable bowel syndrome.  38 C.F.R. § 19.26 (2011). The Veteran is reminded that to vest the Board with jurisdiction over the issue, a timely substantive appeal with respect to this issue must be filed.  38 C.F.R. § 20.202 (2011).  If the Veteran perfects an appeal as to issue of entitlement to an increased initial rating for irritable bowel syndrome, the case must be returned to the Board for appellate review of the issue. 

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other 


appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs