Citation Nr: 1334634 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-02 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to March 1993, a portion of which represented service in the Southwest Asia Theater of Operations, with additional service in the United States Army National Guard. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a rating decision of January 2010, the RO granted entitlement to service connection for a right upper leg and groin strain. Moreover, in a November 2010 rating decision, the RO granted entitlement to service connection for chronic obstructive pulmonary disease and headaches. Accordingly, those issues, which were formerly on appeal, are no longer before the Board. The Board further notes that, at the time of the aforementioned November 2010 rating decision, the RO awarded a 100 percent evaluation for service-connected posttraumatic stress disorder, effective from December 16, 2005, the date of receipt of the Veteran's claim for increase. Inasmuch as no higher rating is available for posttraumatic stress disorder under the available diagnostic criteria, this grant represents a total grant of the benefit sought on appeal. Accordingly, the issue of entitlement to an increased rating for posttraumatic stress disorder is likewise no longer before the Board. Finally, in a decision of December 2011, the Board denied entitlement to service connection for muscle aches and pains (other than right upper leg and groin strain), to include as due to an undiagnosed illness. At that same time, the Board remanded for additional development the issue of entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness. The case is now, once more, before the Board for appellate review. FINDING OF FACT A chronic gastrointestinal disorder, to include hiatal hernia and gastroesophageal reflux disease, is not shown to have been present in service, or for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, or any undiagnosed illness. CONCLUSION OF LAW A chronic gastrointestinal disorder, to include hiatal hernia and gastroesophageal reflux disease, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1117, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in correspondence of February and March 2006, as well as in January 2007, of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording him appropriate VA examinations. As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, VA (including Virtual VA) and private treatment records and examination reports, and various statements by the Veteran's spouse. 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 Veteran 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 Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. 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 Connection The Veteran in this case seeks service connection for a chronic gastrointestinal disorder. In pertinent part, it is contended that the Veteran's current gastrointestinal pathology is in some way causally related to his exposure to various toxic substances during his service in the Persian Gulf War. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Pursuant to applicable law and regulation, VA has authorized payment of compensation to any Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability where the disability becomes manifest during service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more prior to December 31, 2016. Compensation is payable under these provisions if, by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. A qualifying chronic disability means a disability resulting from an undiagnosed illness, or a medically unexplained multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, functional gastrointestinal disorders (excluding structural gastrointestinal disease), or 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 to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes mellitus and multiple sclerosis, will not be considered medically unexplained. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2013). In the present case, service treatment records are negative for history, complaints, or abnormal findings indicative of the presence of a chronic gastrointestinal disorder. In that regard, at the time of the Veteran's service separation examination in January 1993, he denied problems with frequent indigestion, and similarly denied any stomach or intestinal trouble. A physical examination of the Veteran's abdomen and viscera conducted at that time was entirely within normal limits, and no pertinent diagnosis was noted. Significantly, at the time of a service entrance examination conducted for the purpose of the Veteran's enlistment in the Army National Guard in March 1993, he once again denied any problems with frequent indigestion, and again denied any stomach or intestinal trouble. A physical examination of the Veteran's abdomen and viscera conducted at that time was once again within normal limits, and no pertinent diagnosis was noted. The Board observes that, at the time of private outpatient treatment in November 2001, the Veteran received a diagnosis of heartburn, "suspect some gastroesophageal reflux disease." However, a private upper gastrointestinal series conducted one week later was entirely within normal limits. Not until September 2003, many years following the Veteran's discharge from service, did he receive a actual diagnosis of gastroesophageal reflux disease, which was confirmed on private upper gastrointestinal series in April 2004. Significantly, at no time has the Veteran's reflux disease been in any way linked to his period of active military service. Moreover, based on the aforementioned, it is clear that the first confirmed evidence of gastrointestinal disability was at a point in time many years following the Veteran's discharge from service. The Board notes that, at the time of a VA Persian Gulf protocol examination in March 2006, the Veteran indicated that he had experienced gastroesophageal reflux disease as early as 1994. However, and as noted above, the record is devoid of any such pathology prior to November 2001. The Board observes that, at the time of a subsequent VA gastrointestinal examination in June 2010, which examination involved a full review of his claims folder, the Veteran gave a history of gastroesophageal reflux disease beginning in 2005, approximately 12 years following his discharge from service. Significantly, according to the examiner, gastroesophageal reflux disease was a condition with a clear and specific etiology, and not one caused by any specific exposure, injury, or event experienced by the Veteran during service in the Southwest Asia Theater of Operations. Nor was there any evidence to support the Veteran's claim of reflux disease being in any way the result of exposure to chemicals, gases, or smoke while serving in the Persian Gulf War. Finally, the Board notes that, at the time of a recent VA gastrointestinal examination in January 2012, which examination once again involved a full review of the Veteran's claims folder, the Veteran indicated he was first diagnosed with reflux disease approximately 10 to 11 years ago, placing the origin of that disability around or about 2002 or 2003. Noted at the time of examination was that an upper endoscopy conducted in November 2009 was positive for the presence of a hiatal hernia, as well as nonerosive gastritis and a Schatzki's ring in the gastroesophageal junction. Additionally noted was that an upper gastrointestinal series conducted in April 2004 had been positive for very mild reflux. The pertinent diagnoses noted were gastroesophageal reflux disease and hiatal hernia. In the opinion of the examiner, the Veteran's gastrointestinal pathology was less likely than not incurred in or caused by a claimed inservice injury, event, or illness. This was felt to the case given that the Veteran's service treatment records were negative for any gastrointestinal complaints or diagnosis, and that his first gastrointestinal diagnosis post dated his military service by 10 or more years. Further noted was that a Persian Gulf Registry exam conducted in March 2002 had been negative for gastrointestinal complaints, and that the initial complaints of reflux disease were seen in a primary care provider note of September 2003. The Board finds the aforementioned opinions of VA examiners highly probative, because those opinions were based upon a full review of the Veteran's entire claims folder, as well as other pertinent medical records, and full examinations, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion). The VA examiners reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided well-reasoned medical opinions, and alluded to the evidence which supported those opinions. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran suffers from chronic gastrointestinal pathology which is in any way related to his active military service. In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed his current gastrointestinal pathology to exposure to various toxic substances during his service in the Persian Gulf War. However, not until January 2006, many years following his discharge from service, did the Veteran file a claim for service connection for that pathology. As noted above, there is currently no evidence that, to the extent the Veteran currently suffers chronic gastrointestinal pathology, such pathology is in any way related to his period of active military service. Moreover, such pathology was first demonstrated many years following the Veteran's discharge from service. Significantly, the passage of many years between discharge from service and medical documentation of a claimed disability is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). In this case, there is no medical evidence suggesting a link between the Veteran's gastrointestinal pathology and his period of active military service. Nor is there any evidence whatsoever that the Veteran suffers from gastrointestinal pathology which is in some way the result of an undiagnosed illness. Under the circumstances, the Veteran's claim for service connection must be denied. The Board acknowledges the Veteran's contentions regarding the origin of his current disability. However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate his current gastrointestinal pathology to his period of active military service. The Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Moreover, the Veteran, as a layperson, is not competent to create the requisite causal nexus for the disability at issue. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's current gastrointestinal disability with any incident or incidents of his period of active military service, including his service in the Persian Gulf War. Accordingly, the Veteran's claim for service connection must be denied. ORDER Entitlement to service connection for a chronic gastrointestinal disorder, to include as due to an undiagnosed illness, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs