Citation Nr: 1618569	
Decision Date: 05/09/16    Archive Date: 05/19/16

DOCKET NO.  09-40 676	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a right hand disability.

2.  Entitlement to service connection for a low back disability, to include as due to an undiagnosed illness.

3.  Entitlement to service connection for a neck disability, to include as due to an undiagnosed illness.

4.  Entitlement to service connection for a gastrointestinal disability, to include as due to an undiagnosed illness.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Fitch, Counsel


INTRODUCTION

The Veteran had active duty service from July 2002 to July 2008, including service in Southwest Asia, and Reserve service since July 2008.

This matter comes before the Board of Veterans' Appeals Board on appeal from a
January 2009 rating decision by a Regional Office (RO) of the Department of
Veterans Affairs (VA) in Waco, Texas that denied service connection for the
claimed disabilities on appeal.  The Veteran was afforded a December 2011 Board
hearing before the undersigned.  The hearing transcript is associated with the
record.

In March 2012, this matter was remanded for additional development.

In December 2015, the Veteran submitted VA Form 21-526EZ, claiming service connection for right and left knee and left hip disabilities.  These matters have not yet been adjudicated and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.


FINDINGS OF FACT

1.  In a December 2011statement, and as noted in testimony before the Board in December 2011, the Veteran requested to withdraw his appeal for right hand pain.  



2.  The Veteran has not been shown to have a low back disability, to include objective signs of an undiagnosed illness.

3.  The Veteran has not been shown to have a neck disability, to include objective signs of an undiagnosed illness.

4.  The Veteran has objective signs of an undiagnosed gastrointestinal illness that is present to a compensable degree.



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal concerning the issue of entitlement to service connection for right hand pain have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.204 (2015).

2. The criteria for service connection for a low back disability, to include as due to an undiagnosed illness are not met.  38 U.S.C.A. § 1110, 1117, 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.309, 3.317 (2015).

3. The criteria for service connection for a neck disability, to include as due to an undiagnosed illness are not met.  38 U.S.C.A. § 1110, 1117, 1131, 5107; 38 C.F.R. § 3.303, 3.309, 3.317.

4. The criteria for service connection for a gastrointestinal disability as due to an undiagnosed illness are met.  38 U.S.C.A. § 1110, 1117, 1131, 5107; 38 C.F.R. § 3.303, 3.309, 3.317.



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal.

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.  An appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202, 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In a December 2011 statement the Veteran requested to withdraw his appeal for right hand disability, described as pain.  At the December 2011 hearing, the undersigned pointed out that this issue had been withdrawn from appeal.  As such, there remains no allegations of errors of fact or law for appellate consideration for this claim.  Although the Board inadvertently included this issue on its previous remand; the appeal was no longer before the Board at that point.  See Hanson v. Brown, 9 Vet. App. 29, 31-2 (1996) (once a claim is withdrawn it ceases to exist and is no longer viable).  Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed.  

II.  VCAA.

In July 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015).  The RO notified the Veteran of: information and evidence necessary to substantiate the claims at issue; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide.  The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Next, the "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2013).  VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015).  Relevant service treatment and other medical records have been associated with the claims file.  The Veteran was also afforded a VA examinations that are fully adequate to decide the claims.  The examiners indicated that the Veteran's claims file was reviewed and fully explained the basis for the opinions provided.  

The Veteran testified before the Board in December 2011.  The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim currently on appeal.  Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

Here, the Board notes that this matter was remanded in March 2012 in order to verify all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) since his discharge from service in July 2008, obtain all service treatment records for the Veteran's reserve service, attempt to obtain records pertaining to treatment for gastroenteritis from Temple VA Medical Center or other identified VA facility, and obtain records of private treatment for gastroenteritis or an stomach disorder from his physician located in Beaumont, Texas that were identified at the June 2010 gastrointestinal examination.  

Upon remand, the Veteran indicated that he did not remember the physician who treated him in Beaumont, Texas, but reported the treatment was at Baptist Hospital.  Subsequently, records from this facility regarding treatment for gastrointestinal disability were obtained.  The additional requested VA treatment records also were obtained, as well as service treatment records for the Veteran's reserve service and records related to the Veteran's periods of ACTDUTRA and INACDUTRA.  As such, the Board finds that there has been substantial compliance with the terms of the multiple remand directives.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

III.  Service connection.

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  

Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)).  In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

For veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011.  38 C.F.R. § 3.317(a)(1)).

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis.  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are competent to report objective signs of illness.  Id.

A medically unexplained chronic multi symptom illnesses is a diagnosed disease defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness.

A "medically unexplained chronic multi symptom illness" means 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 will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

The Secretary has recognized nine infectious diseases and there long term health consequences as subject to presumptive service connection under 38 C.F.R. § 3.317(c),(d).  

"Objective indications of 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.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following:  (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).  

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  To deny a claim on its merits, the evidence must preponderate against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996).

In this case, the Veteran contends that he has neck, back, and gastrointestinal disabilities that are a result of his military service.  

Service treatment records show evidence of treatment and diagnosis of low back pain due to mechanical low back pain.  There was also evidence of complaints of neck pain.  Treatment included use of conservative measures.  Upon separation, the Veteran reported a history of back pain. 

The evidence in this case includes a December 2008 VA examination.  The examiner found that the gastroenteritis, back pain, and neck pain examinations were all normal.  No disability was diagnosed.  The Veteran was also examined a June 2010 spine examination which likewise found that the cervical spine and lower back examinations were normal.  A June 2010 gastrointestinal examination found that the Veteran had episodes of gastrointestinal symptoms in 2008 and 2009.  The examiner found that the Veteran's second episode in 2009 was not gastroenteritis, explaining that gastroenteritis implied diarrhea "enteritis" and the Veteran had only vomiting  "gastro."  The examiner stated that the Veteran had a single episode of gastroenteritis in service in 2008, completely resolved, no recurrences.  It was noted that the Veteran's second episode was not gastroenteritis and therefore not related to the single episode of gastroenteritis in service.

Since the December 2008 and June 2010 examinations, the Veteran has had continued complaints of pain in his neck and back.  An October 2012 VA treatment note indicated back mechanical strain, but otherwise there have been no diagnoses related to the back and neck associated with the complaints.  

With respect to a gastrointestinal disability, in late 2011 into 2012, the Veteran had complaints of rectal bleeding and in February 2012 he underwent an EGD procedure.  His symptoms were noted to be intermittent rectal bleeding, abdominal cramps, loose stools, occasional nausea and vomiting.  He was also indicated to have small internal hemorrhoids.  The results of the examination indicated normal EGD without evidence of esophagitis, gastritis or PUD.  Finally, the Board notes that the Veteran testified before the Board in December 2011, that he was a dental assistant in the military and that standing to perform his duties caused strain on his neck and back.  

In this case, the VA examinations of record do not show a diagnosed neck, back, or gastrointestinal disability, nor do these examinations indicate objective signs of an undiagnosed illness.  While the Veteran's reports and testimony of pain could be objective signs of a disability, under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117 such disability would have to be compensable.  

The reports of nausea and vomiting satisfy the requirement for a compensable disability satisfy the requirement for objective signs of disability and would show a disability that is present to a compensable degree.  38 C.F.R. § 4.114, Diagnostic Codes 7301-7311 (2015).  The criteria for service connection as an undiagnosed illness are met on the basis of the presumptions afforded Persian Gulf Veterans.

Absent painful motion, or limitation of motion there is no compensable disability of the neck or back.  38 C.F.R. §§ 4.40, 4.45, 4.71a (2015).  While the Veteran has reported pain in the back and neck, he has consistently been found to have normal ranges of motion without evidence of pain on motion.  Accordingly, he does not have a diagnosed disability or an undiagnosed disability present to a compensable degree.

In summary, the evidence supports the grant of service connection for a gastrointestinal disability; but is against the grant of service connection for low back or neck disabilities.  As such, the preponderance of the evidence is against service connection and the claims must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The appeal concerning the issues of entitlement to service connection for right hand pain is dismissed.

Service connection for a low back disability is denied.

Service connection for a neck disability is denied.

Service connection for a gastrointestinal disability is granted.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs