Citation Nr: 1752211 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-00 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for irritable bowel syndrome (IBS). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Army on active duty from January 1991 to May 1991. He has additional service in the Army Reserves. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A hearing was held before the undersigned Veterans' Law Judge in August 2016. FINDING OF FACT The Veteran did not suffer from IBS during his active service, and his current IBS is not otherwise related to his service CONCLUSION OF LAW The criteria for service connection for IBS have not been established. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The VA has a duty to notify and assist claimants in substantiating claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). VA provided the required notice by letter in January 2012. The Veteran submitted private medical evidence. The VA satisfied the duty to assist by obtaining military medical records and service personnel records and by providing a medical examination in November 2013. II. ANALYSIS Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§1110 (West 2014); 38 C.F.R. § 3.303 (2016). The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). IBS was initially diagnosed in October 1991, after the Veteran's active duty period of service. Private medical records and a November 2013 VA examination report show the Veteran is currently diagnosed with IBS. Service records show the Veteran was called to active duty and served in Germany from January 1991 until May 1991. He currently contends that he experienced cramping and constipation while on active duty during this period but did not seek treatment at the time. However, on his May 1991 exit examination history, the Veteran noted he was "in good health..." and did not report any gastrointestinal complaints. Moreover, no gastrointestinal disorders were found on examination at that time. Finally, when the Veteran initially sought treatment for constipation and cramping in October 1991, he reported flu symptoms in August or September of 1991. The Board finds the Veteran's current contentions regarding experiencing cramping and constipation during active duty service from January to May 1991 to not be credible. This is not because these symptoms are not documented in the Veteran's service treatment records. Rather, it is because the contemporaneous records show the Veteran reported no history of gastrointestinal symptoms upon exit from active duty in May 1991 (and none were found by medical professionals on clinical examination) and because when the Veteran did seek treatment for gastrointestinal symptoms in October 1991, he placed the onset of symptoms in August or September of 1991 - not January to May 1991. The Board finds the Veteran's 1991 statements regarding his gastrointestinal symptoms to be more probative than the current contentions made in the course of seeking monetary benefits both because the 1991 statements are contemporaneous with the events in question and because the October 1991 statements were made in the course of seeking medical treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In November 2013, VA physician P. H. examined the Veteran and reviewed his medical records. He reviewed and discussed medical literature and scientific studies reporting links between IBS (and Gulf War illnesses) and pre-deployment vaccinations. P. H. determined "it is more likely than not that this [V]eteran developed post-infectious IBS from the flu in September 1991." He states, "this [V]eteran's irritable bowel syndrome was less likely as not caused by or a result of the vaccines he was given for his active duty activation." Additionally, P. H. concluded the Veteran's IBS "was less likely as not caused by or a result of some other injury, illness, or event during his period of active duty service" because there is no mention of bowel problems during the active duty service and the Veteran left active duty with no problems noted in his exit medical examination report. The Board finds this opinion highly probative as the examiner reviewed the relevant records and scientific studies and provided a rationale for his determinations. There are no contrary medical opinions of record. Although the Veteran asserts, in his December 2013 "Appeal to Board of Veterans' Appeals", his flu symptoms noted by the November 2013 VA examiner were actually due to IBS, the Board finds that as a layperson, the Veteran is competent to report his symptoms but does not have the expertise to make a diagnosis of IBS. Jandreau V. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The facts in the file and theories put forth by the Veteran and his representative warrant a discussion of whether statutory presumptions might substantiate service connection. The first possible presumption applies to Persian Gulf Veterans. The presumption extends to Veterans with service in specific locations in Southwest Asia. The Veteran has not asserted, and the record does not demonstrate, that he ever had service in the Persian Gulf. Thus, the presumption is not for application. 38 U.S.C.A. §§1117, 1118 (West 2014); 38 C.F.R. § 3.317 (2017). The second possible presumption applies to chronic diseases which manifest within prescribed time periods after active duty. IBS is not among the listed presumptive chronic diseases. 38 U.S.C.A. §1101 (3) (West 2014); 38 C.F.R. § 3.309 (2017). While continuous symptoms can be used to establish the causal relationship between a chronic disease and an earlier time of manifestation, this type of analysis is not applicable to IBS. The analysis of continuous symptoms is only available for diseases listed in the regulation, and this list does not include IBS. See generally Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In summary, the preponderance of the evidence is against a finding that direct service connection for IBS is warranted and no presumptive provisions apply to support service connection for IBS in this case. Accordingly, entitlement to service connection for IBS is not warranted. ORDER Entitlement to service connection for IBS is denied. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs