Citation Nr: 1307161 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 04-29 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active military duty from June 1977 to April 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, in pertinent part, the RO denied claims for service connection for gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), and hypertension. The Veteran perfected a timely appeal. This case was initially before the Board in October 2007, at which time it was remanded for further evidentiary development. The Veteran also had perfected an appeal of other issues that were on appeal from the May 2003 rating decision, regarding service connection for a bilateral knee disorder, a left shoulder disorder, a lumbar spine disorder, a right foot disorder, and a cervical spine disorder, by filing a notice of disagreement (NOD) and substantive appeal (e.g., VA Form 9 or equivalent statement). See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2009). However, these issues were resolved in the Veteran's favor in a February 2010 rating decision. The Veteran has not appealed either the initial ratings or effective dates assigned for these conditions. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues). Therefore, they are not before the Board. In June 2010, after certification of his appeal to the Board, the Veteran submitted additional evidence. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). In August 2010, when it returned to the Board for further appellate action, the Board issued a decision dismissing the issues on appeal at that time. As the Board had dismissed the issues in error in its August 2010 decision, the Board later vacated the August 2010 decision. A Board decision in February 2011 remanded the issues of service connection for GERD and IBS and denied service connection for hypertension. Thereafter, the Veteran appealed the Board's decision in the matter of service connection for hypertension to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 memorandum decision, the Court vacated the February 2011 Board decision and remanded it to the Board. (The issue of entitlement to service connection for hypertension is the subject of a separate Board decision.) FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, it is reasonably shown that the Veteran's currently diagnosed GERD is related to active service. 2. Resolving all doubt in the Veteran's favor, it is reasonably shown that IBS was aggravated by military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for GERD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for establishing service connection for IBS have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the claims have been granted, no further notification or assistance is necessary, and deciding the appeal is not prejudicial to the Veteran. Legal Criteria, Factual Background and Analysis Service connection may be granted if it is shown that the Veteran suffers from a 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 active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be demonstrated either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection requires competent evidence showing (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A disorder also may be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service treatment records (STRs) show that at entrance into the service in 1977, the Veteran had no complaints regarding GERD and IBS or symptoms associated with such disorders. On clinical evaluation, his abdomen and viscera, anus, rectum and genitourinary system were normal. In August 1977 he was treated for diarrhea. In February 1980, and February 1982 reports of medical history, he indicated he had frequent indigestion and stomach, liver, or intestinal trouble. It was noted on the February 1980 medical history report with regard to frequent indigestion, the Veteran was unable to "digest good" since childhood. On clinical evaluation in February 1980 and February 1982, his abdomen, viscera, anus, rectum, and genitourinary system were normal. In June 1981 the Veteran was seen for complaints of nausea, vomiting and diarrhea since that morning. He stated that he had a glass of grapefruit and began to have diarrhea and nausea shortly afterwards. The assessment was gastroenteritis. In March 1982, he complained of vomiting, nausea and cramps. He reported that he had eaten fish 7 hours prior to getting sick. The assessment was gastroenteritis. He was afforded an upper GI series in March 1982 which was found to be normal. It was noted, however, that he had been getting treated for gastroenteritis and hyperacidity for one and a half years without results. . On his December 1987 re-enlistment medical history report, he indicated he had frequent indigestion. The examining physician noted that frequent indigestion was present during childhood to the present; there was no treatment or diagnosis. On clinical evaluation no abnormalities were reported. The Veteran's abdomen, viscera, anus, rectum, and genitourinary system were normal. In August 1988 (or possibly 1989), he was treated for severe stomach cramps. It was also noted that he had reflux which was possibly secondary to a virus. In his March 1993 report of medical history at discharge, he noted he had frequent indigestion. It was also noted that he did not have stomach, liver, or intestinal trouble. His March 1993 discharge report of medical examination noted a "nervous stomach" especially associated with stress. On clinical evaluation his abdomen and viscera, anus and rectum, and genitourinary system were normal. Postservice, in a June 1997 private treatment report of Dr. R.B., it was noted that the Veteran was doing very well with his IBS. He was taking Metamucil every other day and was on a high fiber diet. His bowel movements were regular. The record also shows the Veteran gave a history in 1997 for treatment purposes that at age 10 the Veteran was hospitalized for severe diarrhea and was told he had a form of colitis. On May 2001 clinical evaluation by Dr. D.K.H. it was noted that the Veteran had IBS and occasional problems with hemorrhoids. It was further noted that he had a "Flex Sig" done in 1998 and was diagnosed with IBS. There was no abdominal pathology and his rectal was within normal limits. In March 2004 the Veteran was admitted to a private medical center for a cardiac catheterization. On review of his systems, he had questionable reflux. In February 2006 the Veteran underwent a CT of the abdomen. The results were unremarkable. The impression was no significant abnormality. A June 2008 private discharge summary indicated the Veteran had possible esophagitis. On January 2010 VA examination, the Veteran reported that he complained of heartburn when he enlisted in the service, but did not recall being treated for it. He stated that he experiences GERD and IBS with stress. He recalled having an upper gastrointestinal in the military. He reported that after military service he was treated with Tagamet and intermittently on his own he would use over-the-counter Maalox and Mylanta. He stated that he did this from 1993 until 2009. He reported that he continues to have reflux symptoms. The diagnosis was presumptive diagnosis of GERD. No confirmatory tests were found in the Veteran's chart, only his subjective complaint of frequent indigestion. The examiner noted that it appeared that he had been empirically treated with Pepcid currently by his gastroenterologist. The examiner stated that was a historical diagnosis which evidenced in the claims file does support that it existed prior to service, since in the military, as the Veteran did report to a physician in 1982 that frequent indigestion started during childhood. Regarding his IBS, he reported that when he was first enlisted in the service he had a bout of diarrhea and constipation. He stated that since his military discharge he has continued to have diarrhea alternating with constipation without significant abdominal pain, which had been treated with increased fiber intake, Metamucil and he had been told to drink a lot of water. He reported that within the first two years of his discharge he had a lower colonoscopy, but he does not know what the results were and there is no documentation. The examiner noted that the Veteran reported to his private physician that at age 10 he had severe diarrhea for three weeks which required an admission to the hospital and he was told that he had some form of colitis; and the assessment by his private physician was possible Crohn ileocolitis. The diagnosis was IBS/acute colitis. There is evidence in the claims file that the Veteran reported that a bout of colitis occurred at age 10 requiring hospitalization. Therefore, the examiner concluded that this entity existed prior to service. The examiner opined that regarding the Veteran's GERD and IBS he has a diagnosis of GERD which appears to have existed prior to service as the Veteran reported the onset of frequent indigestion in childhood. He has a diagnosis of IBS and acute colitis. The Veteran's August 2008 colonoscopy pathology reports indicate that he had an acute colitis which would be a self-limiting colitis or antibiotic-associated colitis but there is no documentation of ulcerative colitis. Therefore, based upon the evidence available, it is the examiner's opinion that it is not at least as likely as not that the Veteran's GERD, IBS, and gastrointestinal disorder of acute self-limited biopsy proven colitis is related to the military service. By rationale, the examiner explained that in service in 1981 and 1982 the Veteran was treated for gastroenteritis and no reflux symptoms were mentioned. Also in 1982 he had an upper gastrointestinal which was performed due to the Veteran having gastroenteritis treated for 11/2 years and hyperacidity; upper gastrointestinal was subsequently found to be normal. In 1987 he was treated for an acute episode of probable reflux secondary to viral syndrome. On his separation examination in 1993 he reported that he had frequent indigestion, but was only treated once for it in service. Regarding IBS the examiner explained that it was the Veteran's private doctor who first revealed a diagnosis of IBS. The symptoms were recurrent diarrhea with severe abdominal cramping. However, it was documented that at age 10 the Veteran was hospitalized for severe diarrhea; he was told he had a form of colitis. His private physician assessed Crohn ileocolitis. Subsequently he was found to have an acute colitis assessed as self-limiting. The examiner concluded that based upon the evidence of record, GERD and IBS do not appear to be military related etiologies and the conditions existed prior to service. The Veteran submitted an Internet article entitled Irritable Bowel Syndrome, which discusses what it is, symptoms, treatment, and causes, among other things. In a May 2010 statement the Veteran noted that he was not diagnosed with or treated for GERD or IBS prior to entering the military. He stated that the only medical problem he had was at age 6 or 7 when he was treated for constipation and given enemas for one day. He stated that he had never been treated again nor had any problems prior to his enlistment. He stated that GERD and IBS were "created" in service, and had gradually worsened every year since his discharge from service in 1993. Pursuant to February 2011 Board remand, on April 2011 VA examiner conducted review of the Veteran's claims file and his CPRS electronic file to specifically address the question of aggravation of GERD and IBS in service, as such had been omitted in the previous examination. The examiner noted that the Veteran currently has diagnoses of GERD and IBS/colitis. It was the examiner's opinion that it is at least as likely as not that the Veteran's current GERD and IBS is the result of a permanent increase in severity of these gastrointestinal conditions during military service. By rationale, the examiner noted that the January 2010 VA examination, which she authored, reported that the Veteran document complaints of frequent indigestion on December 1987, February 1980, and February 1982. The Veteran indicated that his gastrointestinal symptoms increased during times of stress and that he always checked "yes" in the re-enlistment examination to the question regarding frequent indigestion, stomach, cramps, abdominal tenderness, diarrhea, constipation, and frequent indigestion. His reflux/regurgitation symptoms have been treated empirically during his active military service and post discharge with Maalox, Mylanta, Tagamet, Zantac, or Pepcid. His military upper gastrointestinal dated March 1982 failed to confirm reflux, but that is not an unusual finding as radiographic studies are not always conclusive for the diagnosis of reflux. He currently has a diagnosis of GERD and it is documented that he reported only a fair response to Zantac. He was treated for gastroenteritis in the military in June 1981 and March 1982. His symptoms of nausea, vomiting, and diarrhea could have represented the symptoms of IBS/acute colitis. Thus, for the same reason, he will be given the benefit of the doubt and these service treatment records used as supportive evidence for his claim of worsening symptoms of IBS during active military duty. It is remarkable to note that the Veteran's IBS is documented in the outreach clinic progress note as well with his onset in 1997. The examiner further opined that there was a measurable increase in severity for the Veteran's GERD and IBS/acute colitis during his period of service, but that it does appear that there was clear and unmistakable evidence that this permanent increase in severity was due to a natural progression of the disabilities. By rationale the examiner explained that the Veteran's STRs support treatment for gastrointestinal complaints regarding his GERD/IBS symptoms, but his treatment appears to have reasonably controlled his symptoms with just medications or they were self-limited. He did not appear to have any duty restrictions related to the treatment or the symptomatology related to the gastrointestinal disabilities. Additionally, the Veteran did not require hospitalization, gastrointestinal specialty consultations, nor invasive gastrointestinal or surgical procedures while on active duty for these or for IBS/colitis. Thus, the permanent increase in severity appears to be truly due to a natural progression of these disabilities. The Veteran contends that he has GERD and has had it since service. A review of the evidence shows the Veteran did make complaints related to gastrointestinal problems during service, including in June 1981 and March 1982. On February 1980, February 1982, December 1987 and March 1993 (discharge examination) he indicated that he had frequent indigestion. His 1993 discharge examination also noted he had a nervous stomach associated with stress. Postservice treatment reports indicate reports of gastrointestinal symptomatology. The Veteran is currently diagnosed with a gastrointestinal disorder, namely GERD. VA examiner in January 2010 diagnosed the Veteran with GERD and found that it was not related to his military service. The Board finds, however, that service connection is warranted. After considering the medical opinions of record, and reviewing the evidence in its entirety, it appears that there is at least an approximate balance of positive and negative regarding the merits of this issue. Although the Veteran has given a history of having indigestion since childhood, the Board finds that the vague history is not sufficient to rebut the presumption of soundness as it does not constitute clear and unmistakable evidence. In addition, the Board has found the Veteran's statements concerning the severity of his gastrointestinal symptoms in service and a continuity of those symptoms after service to be credible. In this case, while there is a negative opinion against the claim, the Board finds that the positive evidence as described above places the positive and negative in relative balance as to whether the Veteran's current diagnosis of GERD is causally related to his in-service complaints. Thus, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that service connection for GERD may be granted. 38 U.S.C.A. § 5105(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the claim for service connection for IBS, while the January 2010 VA examiner indicated that IBS was not related to service, that same examiner in an April 2011 addendum to the January 2010 opinion concluded that it is at least as likely as not that the Veteran's current IBS was the result of a permanent increase in severity of the Veteran's gastrointestinal conditions during his military service. The examiner provided a complete rationale for the opinion. In the April 2011 addendum, the examiner took the Veteran's contentions (that a gastrointestinal disorder did not pre-exist service) into account. The examiner formed her opinion on the basis of the Veteran's reported medical history. Specifically, the VA examiner noted that the Veteran had been treated in service for gastroenteritis and hyperacidity, and that he had reported during re-enlistment examinations dated in February 1980 and February 1987 that he experienced frequent indigestion during childhood to the present. The VA examiner additionally noted that a STR progress note recorded that the Veteran had a form of colitis for two weeks at the age of 10 that required admission to the hospital. She also noted that the Veteran reported having a nervous stomach associated with stress on his March 1993 medical history report at separation; and in 1997, the Veteran was found to have IBS. Based on this evidence, the VA examiner indicated that the Veteran's IBS/colitis pre-existed his military service, and did not appear to be related to service. The Board notes, however, that for purposes of establishing service connection under 38 U.S.C.A. §§1110, 1131, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111 for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003. The United States Court of Appeals for the Federal Circuit has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board is of the opinion that the Veteran's IBS clearly and unmistakably existed prior to service based on the Veteran's reports in service that he had digestive problems since childhood to the present, and the very specific history of a hospitalization for diarrhea prior to service, in combination with the medical opinions which indicate pre-existence. In this regard, the service medical records reflect that he reported having indigestion throughout childhood on more than one occasion. The record also shows the Veteran gave a history in 1997 for treatment purposes that at age 10 the Veteran was hospitalized for severe diarrhea and was told he had a form of colitis. He was assessed in 1997 with having Crohn's ileocolitis. Moreover, in his May 2010 statement the Veteran noted that he was treated for constipation as a child. The VA examiner, considering all such information concluded that the irritable bowel syndrome clearly and unmistakably existed before service. The Board agrees with this conclusion. To the extent that the Veteran now denies having a history of symptoms before service, the Board finds that such statements have less persuasive value than the earlier statements which he made which are to the contrary. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). With respect to whether there is clear and unmistakable evidence there was no aggravation or that any aggravation was due to natural progress, the Board has noted that the VA examiner opined that there was a measurable increase in severity for the Veteran's IBS during his period of service. She noted a worsening of the Veteran's IBS symptoms during active military duty. In the January 2010 VA examination report, the examiner noted that the Veteran reported having a lower colonoscopy within the first two years following his discharge from service. A June 1997 private treatment report noted the Veteran had recurrent diarrhea that woke him up at night and was associated with severe abdominal cramping with blood in his stool for three days. In 2004 he was seen for significant retention of solid food in his stomach; and in 2008 he was found to have a form of colitis. The Board has noted that the VA examiner stated that it appears that there was clear and unmistakable evidence that the permanent increase in severity was due to a natural progression of his disability (IBS). However, the Board finds the Veteran to be credible with regard to symptoms and treatment he experienced regarding his IBS. The record documents that he has experienced a permanent worsening of his IBS, which began in service and appears to have increased beyond natural progress in severity. The Board does not find that the VA examiner's opinion amounts to clear and unmistakable evidence that the disorder was not aggravated beyond the natural increase. The Board notes that although there was a history of hospitalization before service at age 10, there is no indication that he had ongoing symptoms between that time and his entry into service. It appears that recurring symptoms then began during service, and continued subsequent to service. Accordingly, with resolution of reasonable doubt in the Veteran's favor, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that service connection for IBS may be granted. ORDER Service connection for GERD is granted. Service connection for IBS is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs