Citation Nr: 1312943 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 11-25 250 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to service connection for irritable bowel syndrome, claimed as due to undiagnosed illness or medically unexplained multisymptom illness. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from October 1987 to November 1991. His awards and medals include the Combat Action Ribbon. He was also awarded the Southwest Asia Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the VARO in Lincoln, Nebraska, that, in pertinent part, denied entitlement to service connection for irritable bowel syndrome, claimed as due to an undiagnosed illness. The Board notes that service connection is currently in effect for the following: Post-traumatic stress disorder, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; dermatitis, rated as 10 percent disabling; and hearing loss involving the left ear, rated as noncompensably disabling. A combined disability rating of 40 percent has been in effect since April 4, 2010. The Board notes that by rating decision dated in April 2010, in pertinent part, service connection for bilateral plantar fasciitis and bilateral pes cavus was denied. The Veteran was notified of the denial action by communication dated May 3, 2010. He submitted a notice of disagreement that was received in July 2010. He was issued a statement of the case on the issue in February 2011 and was told that he had to file an appeal within 60 days from the date of the statement of the case, that being February 8, 2011, within the remainder of the one-year period from the date of the letter notifying him of the action from which he was appealing (that being May 3, 2010). The Veteran did not submit a Form 9 with regard to the bilateral foot disorder until September 2011. With the appeal not being timely filed, the determination in April 2010 is final. 38 C.F.R. § 20.302 (2012). FINDING OF FACT The recently diagnosed gastroesophageal reflux disease (GERD) represents neither an undiagnosed illness nor a medically unexplained chronic multisymptom illness. CONCLUSION OF LAW The Veteran does not have a gastrointestinal disorder was incurred in or aggravated by active military service, or one that is due to an undiagnosed illness related to service in Southwest Asia during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1117, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) redefines VA's duty to notify and assist a Veteran in developing a claim for VA benefits. Regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must notify the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In various letters, particularly dated in 2010, VA explained how to establish entitlement to service connection generally, including the fact that the cause of a disability is presumed for Veterans who had certain diseases and served in Southeast Asia during the Gulf War. They also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that the Veteran would obtain. The VCAA also requires VA to take reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Thus duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all identified post service private and VA treatment records. The Veteran has also been accorded multiple VA examinations. Accordingly, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for service connection for a gastrointestinal disorder due to undiagnosed illness or medically unexplained chronic multisymptom illness, is thus ready to be considered on the merits. Pertinent Law and Regulations Service connection will be granted when the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) A current disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and a current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for disease first 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. In this case, the Veteran's records reflect that he is a Persian Gulf War Veteran. Congress has created special rules with regard to such Veterans establishing entitlement to service connection. Service connection may be granted to a Persian Gulf War Veteran who exhibits "objective indications" of a "qualifying chronic disability." 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is currently defined as either an undiagnosed illness or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2). Irritable bowel syndrome (IBS) is listed as a medically unexplained chronic multisymptom illness. 38 U.S.C.A. § 1117(a)(2)(B); 38 C.F.R. § 3.317(a)(2)(B)(1)(3). "Objective indications of chronic disability" is defined to include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, nonmedical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for at least six months and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered "chronic." 38 C.F.R. § 3.317(a)(4). The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2016. 38 U.S.C.A. § 1117(a)(1)(B); 38 C.F.R. § 3.317(a)(1)(i). By history, physical examination and laboratory tests, the disability can now be attributed to any known clinical diagnosis. 38 C.F.R. § 3.307(a)(1)(ii). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to, IBS. 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b)(7). VA has defined a medically unexplained chronic multisymptom illness as "a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion of physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii). Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multisymptom illness that includes: Skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory system symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. See 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, competent evidence of a nexus between the claimed illness and service is not required. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Further, lay persons are competent to report objective signs of illness. Id. For the following reasons, the Veteran's claim must be denied on a direct and presumptive basis, including under the statute and regulations applicable to Persian Gulf Veterans. The service treatment records are without reference to complaints or findings indicative for the presence of a gastrointestinal disorder, to include IBS and/or GERD. The post service medical evidence includes medical records showing the Veteran was seen in a private clinic in March 2004. He reported that about a year earlier he had undergone a barium swallow. It did not sound like he had had a esophagogastroduodenoscopy or other diagnostic studies other than H-pylori and subsequently treated. He then had repeat H-pylori testing. He did not express complaints or concerns with regard to the gastrointestinal system. Examination findings included positive bowel sounds. There was no indication of organomegaly or masses. The assessment included GERD. The Veteran was also seen in August 2006 for complaints of abdominal pain. He felt he was somewhat nauseous. He had no vomiting, fevers, or chills. He stated this had been present for about five years. VA reportedly told him he should have an esophagogastroduodenoscopic examination. This was apparently done and was essentially described as negative. He was encouraged to have a colonoscopic examination, but he had not done this. He was told about five years earlier, following CT scan, that he had an inflamed appendix and "something about a flapper." He denied any changes in his stool, color, character, or frequency. He had received Bentyl in the past and remained on Prilosec. Following clinical examination and laboratory testing, an assessment was made of abdominal pain, of undetermined etiology. He was advised to have a CT scan of the abdomen, but denied "want of that." He left against medical advice. The pertinent medical evidence also includes the report of a general medical examination accorded the Veteran by VA in October 2010. The claims file was reviewed by the examiner. It was noted the Veteran was there for a general medical examination and opinion for undiagnosed Gulf War illness, to include fatigue, IBS, upper and lower extremity rash, and headaches. The Veteran reported he had gained 30 to 40 pounds in the past year. He stated he had intermittent pain of the abdomen that occurred about 1 to 2 times a month. He stated that in August 2003 he was thought to have an acute appendix attack, but the pain resolved the next day. On another occasion he was thought to have a kidney stone, but a CT scan done the next day was negative. He at one time took Protonix for GERD. He stated if he did not take it, he would get diarrhea and this would contribute to his abdominal pain. When asked why he thought the problems at the present time were related to the Gulf War, "he is unable to provide an answer. He stated he read an article about it and thought he should get it checked out to see if it was related." Current clinical examination of the gastrointestinal area was normal. Following the examination the examiner stated "the Veteran has a disease with a specific and clear etiology and diagnosis." Diagnoses included "irritable bowel syndrome: Related to his current DX of GERD." It was indicated a medical opinion had not been requested. The Veteran was accorded an esophageal conditions examination by VA in June 2012. The examiner noted the Veteran currently had or had had a diagnosis of GERD. The Veteran currently complained of lower abdominal cramps once every 3 to 4 months. It was noted that 15 years earlier he had cramping that became quite severe and lasted four days, although no specific diagnosis was made at the time. There had been no recurrence since. When asked about Gulf War illness, he stated he never developed any gastrointestinal symptoms while in the Gulf. Since the Gulf War he stated he had had some lower abdominal symptoms which at one time were thought to be related to irritable bowel syndrome. Currently, he had no symptoms suggestive of irritable bowel syndrome. He had not undergone any intestinal examination which would rule out any type of gastrointestinal etiology, including diverticuli. It was noted he was taking Omeprazole for GERD. The examiner opined that IBS due to environmental hazards in the Gulf "is less likely as not (less than 50/50 probability) caused by or a result of the Veteran's active service." As for rationale for his opinion, the examiner stated that the Veteran currently had no symptoms of IBS. The examiner noted symptoms in the past did not meet the criteria for IBS. He stated the Veteran's current and frequent lower abdominal cramping was less likely as not caused by, aggravated by, or the result of IBS resulting from environmental hazards in the Persian Gulf Theater of Operations. The record shows the Veteran was accorded a Gulf War general medical examination by VA in November 2012. The examiner noted that the Veteran had been diagnosed with an esophageal condition that was listed as GERD. The Veteran stated he had had GERD since "way back." He reported having had heart burn in the military. He claimed that some of the beef patties and soda he consumed in service caused significant reflux. He stated that he used medication for 10 years. He claimed that he used TUMS and Rolaids while in service. The Veteran reported "9 different diagnoses for the same symptom." He stated that it originally happened in 1991 when he had pain in the right lower quadrant that moved to the middle of the abdomen and then on to the left lower quadrant. He indicated that when it got to the left lower abdomen area, he knew the symptoms were going to subside. He reported having a CT scan done in the 1990's or it might have been 2000 at which time the abdomen was described as negative. There was no reason found for his discomfort. He stated the physician believed he had GERD, but an increase in GERD medication did not affect the condition. He also stated he was diagnosed with a bladder infection, and reported treatment for this condition had not affected his condition. He also stated he had another CT scan done in 2006 and that was negative. He denied ever having had a colonoscopic examination. He stated an ultrasound of the liver and gallbladder in 2012 was negative for fatty liver. He reported increased fiber did not change things. He stated he had regular bowel movements. Following examination, the examining physician stated that "after review of the C-file and examination of the Veteran it is my opinion that the Veteran's gastrointestinal condition was less likely than not due to environmental hazards in the Gulf. In addition it is less likely than not the Veteran has a chronic disability pattern. In addition, the Veteran's condition has been undiagnosed." As for rationale, he stated that while the Veteran reported occasional episodes of abdominal pain radiating from the right lower quadrant to the left and lasting several days, this was not related to a change in bowel habits. The Veteran did not have diarrhea. He reported multiple CT scans of the abdomen were negative. He had not a colonoscopic examination. He presently was described as asymptomatic. Current examination of the abdomen was benign and nontender. Records in 2010 noted his last "attack" was about a year earlier. Records from 2006 note abdominal pain of undetermined etiology. The Veteran left against medical advice. Records dated in 2008 noted a CT scan showed enlarged or swollen appendix, but the Veteran stated his surgeon reported not having evidence of appendicitis. The examiner stated the Veteran seemed to be describing occasional abdominal cramping related to peristalsis of the bowels. He stated he was of the opinion the Veteran's condition was not related to military service and the Veteran had an undiagnosed condition that was not present on current examination. He noted VA might request additional information, including additional examinations if necessary to complete VA's review of the Veteran's application. Based on the above, entitlement to service connection for an undiagnosed illness manifested by gastrointestinal symptoms must be denied because there are no objective indications of chronic disability as defined in 38 C.F.R. § 3.317. There are no signs in the medical sense of objective evidence presentable to an examining physician or other nonmedical indicators that are capable of independent verification. The VA physician who reviewed the entire claims file in conjunction with his examination of the Veteran in November 2012 explained his reasons for stating that the Veteran had an undiagnosed condition that was not related to military service and was not present on his examination of the Veteran. He noted that while there were previous reports of abdominal pain and undetermined etiology and possible appendicitis, there were no objective indications of chronic disability. The physician's opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of medical opinion comes from its reasoning). The Veteran himself is competent to testify as to his own observations. However, even if competent testimony as to abdominal cramping is credible, 38 C.F.R. § 3.317 indicates that a finding that signs or symptoms constitute objective indications of chronic disability requires either objective evidence perceptible to an examining physician or non-medical indicators that are capable of independent verification. Given the lack of objective indications of chronic disability relating to abdominal cramping or other type of sign or symptoms, manifestation of an undiagnosed illness, the weight of the evidence is against a finding of entitlement to an undiagnosed illness attributable to the Veteran's experiences in the Persian Gulf Theater of Operations. The evidence is also against a finding of entitlement to service connection on any other basis based on this symptomatology. As explained by the Federal Circuit, in order for a Veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a Veteran must prove existence of a disability, and one that is the result of a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (2001). The medical evidence of record reflects that there was no disease or injury in service that caused any current gastrointestinal symptoms or disability. The weight of the evidence is against a finding of entitlement to service connection on a direct or presumptive (for chronic diseases) basis as well. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for IBS or any other gastrointestinal disorder as due to an undiagnosed illness in the Gulf War. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for a gastrointestinal disability, to include IBS, due to an undiagnosed illness is denied. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs