Citation Nr: 1752463	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  11-21 677	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a duodenum disorder, to include duodenitis. 


REPRESENTATION

Veteran represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

K. Kardian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1999 to August 1999, from September 2005 to October 2005, and from October 2007 to October 2008. In addition, the Veteran had additional periods of active duty for training (ACDUTRA).  

This matter is before the Board of Veteran's Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran and his wife testified at a video conference hearing in April 2012. A transcript of the hearing has been associated with the claims file. 

The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDING OF FACT

The competent evidence of record does not show a diagnosis of a duodenum disorder, to include duodenitis, at any point during the appeal period. 


CONCLUSION OF LAW

A duodenum disorder to include duodenitis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

During the hearing, the Acting Veterans Law Judge (AVLJ) clarified the issues and explained a service connection claim. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims.  The actions of the AVLJ supplement VCAA and comply with 38 C.F.R. § 3.103.

The Board notes that neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits.

II. Compliance with Prior Remands

Previously the case was most recently before the Board in January 2017. In addition, the case was previously remanded in May 2014, October 2014, and June 2015 for additional development. The case was most recently remanded in January 2017 for additional development. The AOJ was directed to obtain any additional records and confirm active duty service, ACDUTRA and INACDUTRA for the period from August 2012 to August 2013. Additionally, the AOJ was to obtain all service treatment records for this period and rescan the Veteran's DPRIS file. The Veteran's service records from August 2012 to August 2013 and his DPRIS file have been rescanned and associated with the claims file. As such the Board finds there has substantial compliance with the prior remand. 

II. Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 CFR 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309.

In addition, the Board notes that the Veteran served in the Southwest Asia theater of operations in support of Operation Iraqi Freedom. 38 C.F.R. § 3.317 (e). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). 

Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c).

The Board notes that the Veteran is not asserting that his claimed disabilities resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (b) (West 2014) are not applicable. 

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

III. Analysis

The Veteran contends he is entitled to service connection for a duodenum disorder to include duodenitis. The Veteran has reported ongoing symptoms of diarrhea, stomach irritation and abdominal pain since his deployments in Southwest Asia. The Veteran is competent to describe his ongoing symptoms in-service and since and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
 
The Veteran does not have a current diagnosis of duodenitis or a duodenum disorder. See December 2014 VA examination. The Veteran contends that his symptoms worsened as a result of his deployments and ongoing stress. The Veteran and associated lay statements report he has difficulty after eating and must plan his time around eating and needing to urgently use the restroom. The Veteran's wife testified in April 2012 that after his deployment in 2007 to 2008 there was a significant and noticeable change in his symptoms, and that now everything he eats makes him sick. While the Veteran is competent to report his symptoms, he is not competent to state that he has a duodenum disorder, as this determination requires specialized medical knowledge and training. Jandreau, 492 F.3d at 1377.  Here, there are no Jandreau type exceptions. As there is no competent lay evidence of record, the issue of a current disability must be decided based on the medical evidence of record. 
As a preliminary matter, the Board notes the Veteran is currently service-connected for irritable bowel syndrome (IBS), with mild chronic gastritis rated at 30 percent disabling, effective August 6, 2010. This disability is rated under Diagnostic Code 7319, irritable colon syndrome, which reflects the predominant disability picture.  

The Veteran does not have a current duodenum disorder, to include duodenitis. As with all claims for service connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Turning to the medical evidence, the Veteran's service treatment records (STRs) have been associated with the claims file. STRs note that the Veteran was seen on several occasions for abdominal pain and ongoing diarrhea. In a January 2008 pre-deployment health assessment, it was noted the Veteran needed follow-up with a gastrointestinal review and a scope. Additionally, treatment records reflect while serving in Iraq the Veteran sought treatment for stabbing diffuse abdominal pain radiating to the epigastrium. August 2008 treatment records note ongoing abdominal pain and symptoms consistent with IBS given the chronic pain and increased gas and urgency. See August 13, 2008 STR. In an October 2008 post-deployment health questionnaire the Veteran noted diarrhea, frequent indigestion and heartburn. An April 2010 treatment record noted mild chronic colitis, increased IgA associated with gluten intolerance, and noted a long history of abdominal pain, mild chronic colitis, gluten intolerance and associated diarrhea. See April 28, 2010 service treatment record. 

The Veteran was afforded a VA examination in November 2010. The examiner noted the Veteran's ongoing symptoms of nausea, vomiting, diarrhea, constipation and abdominal pain. The VA examiner noted the Veteran had a diagnosis of mild chronic colitis, and increased IgA associated with gluten intolerance. See November 2010 VA examination. 

Next, the Veteran was afforded a VA examination in June 2014. The VA examiner noted the Veteran had a diagnosis of irritable bowel syndrome (IBS). See June 2014 VA examination. The examiner noted a May 2014 colonoscopy with a duodenal biopsy found no abnormalities. The examiner noted the Veteran suffers from chronic diarrhea and abdominal pain and his current symptoms are not due to a stomach or duodenal condition. The examiner found that the Veteran's current gastrointestinal disorder to include IBS, gastritis and duodenitis is at least as likely as not related to an injury or disease that was incurred in-service. The examiner noted the Veteran has a current diagnosis of IBS, and IBS is a diagnosable chronic multisystem illness with a partially explained etiology and therefore is at least as likely as not related to his exposure to environmental hazards during the Gulf War. As such the examiner found that the Veteran's current gastrointestinal disorder to include IBS is related to service and contemplates his ongoing symptomology. 

Then, the Veteran was afforded a supplemental VA opinion in December 2014. The examiner clarified that the Veteran does not have a current diagnosis of duodenitis. See December 2014 VA opinion. As such, this condition is less likely than not related to service. The Board finds the VA examination and opinion are entitled to probative weight as to the issue of a currently disability. As the examination and opinion were clearly based on a thorough review of the record and were well supported by a well-reasoned rationale and examination of the Veteran. Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312.

VA and private treatment records have been associated with the claims file and at no point reflect a current disability of a duodenum disorder, to include duodenitis. A pathology report from October 2007 noted that a biopsy was taken of the second port of the duodenum and of the duodenum bulb. The results of the duodenum biopsies noted no pathologic abnormalities. See October 25, 2007 STR. The treating provider noted a diagnosis of mild chronic gastritis, as a result of the stomach biopsy. Treatment records in March 2009 note an upper endoscopy showed a normal duodenum with no evidence of villous blunting or other pathological abnormalities. See March 3, 2009 private treatment record. A May 2014 esophagogastroduodenoscopy with biopsy noted a normal duodenum and biopsies were negative for any abnormal pathology. See May 27, 2014 private treatment record. Treatment records are absent for treatment of a duodenum disorder. 

The Board notes the Veteran's reports regarding his symptoms in-service and ongoing manifestations which he is competent to report. However, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a duodenum disorder. The Board notes that the medical evidence is more probative and more credible than the lay opinions of record. Particularly the June 2014 VA examination and December 2014 VA opinion noted the Veteran's reported symptoms and attributed his reported symptoms to IBS, and found such was at least as likely as not related to his exposure to environmental hazards during the Gulf War. Further, the VA examiner found the Veteran did not have a duodenum disorder. VA and private treatment records consistently noted no duodenum abnormalities. Thus, the more probative evidence of record indicates the Veteran dos not have a duodenum disorder. 

In addition, although the Veteran served during the Persian Gulf War, he cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of a chronic disability. As noted above the Veteran is currently service-connected for irritable bowel syndrome (IBS), with mild chronic gastritis rated at 30 percent disabling. This disability is rated under Diagnostic Code 7319, irritable colon syndrome, which reflects the predominant disability picture and contemplates his ongoing symptomology. Further, IBS is a diagnosable chronic multisystem illness with a partially explained etiology and is attributed to the Veteran's exposure to environmental hazards during the Gulf War. 

As such, the Board finds that service connection for a duodenum disorder to include duodenitis is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364   (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


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ORDER

Entitlement to service connection for duodenum disorder, to include duodenitis is denied. 




____________________________________________
N. RIPPEL
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs