Citation Nr: 1802694 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-15 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for irritable bowel syndrome (IBS). ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1987 to November 1991, during peacetime and the Persian Gulf War. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision issued by the Department of Veterans Affairs (VA), San Juan, the Commonwealth of Puerto Rico, Regional Office (RO). This matter was previously before the Board in December 2010 and most recently in June 2016 where the claims for service connection for fibromyalgia and IBS were remanded for further development. In April 2016, a private attorney's motion to withdraw as counsel for the Veteran was granted. The Board notified the Veteran in an April 2016 letter of the withdrawal of his counsel, afforded him an opportunity to appoint new representation, and informed him that the Board would presume he wanted to proceed without representation if no response was received within the designated time. As the Veteran provided no response to the April 2016 Board letter, the Board presumes the Veteran seeks to represent himself in this appeal. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. The Veteran's diagnosed fibromyalgia manifested to a degree of 10 percent or more after his discharge from service. 2. The preponderance of evidence is against a finding that the Veteran has a diagnosis of irritable bowel syndrome. His current disability diagnosed as malabsorption syndrome is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia have been met. 38 U.S.C. §§ 1110, 1117, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). 2. The criteria for service connection for irritable bowel syndrome to include malabsorption syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Further, a review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disabilities on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Veteran has not objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board notes that it has thoroughly reviewed all the evidence of record in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. II. Service Connection The Veteran seeks service connection for his fibromyalgia and irritable bowel syndrome which he contends is due to his service in Saudi Arabia or otherwise etiologically related to service. Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multisymptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 C.F.R. § 3.317. The regulation provides that service connection may be established for a Persian Gulf veteran who has a qualifying chronic disability that became manifest during service or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317. Fibromyalgia At the outset, the Board acknowledges that the Veteran has qualifying service in the Southwest Asia Theater of operations as his military personnel records reflect that he served in Saudi Arabia from December 1990 to April 1991. He is therefore considered a Persian Gulf War Veteran. See 38 C.F.R. § 3.317(e). In this regard, with respect to the Veteran's claim for service connection for fibromyalgia, the Board finds that service connection based on the presumption in favor of Persian Gulf War Veterans is warranted in this case. The record reflects a September 2011 diagnosis of fibromyalgia by a VA physician that personally examined the Veteran. The examination report reflects that the diagnosis was based on the examining physician's review of the Veteran's file, medical history, and personal examination of the Veteran. See Compensation and Pension Exam Report dated September 2011. The record also reflects that the 2011 diagnosis of fibromyalgia was confirmed in an additional examination provided in April 2017 by a VA contractor. Although the physician rendered an unfavorable nexus opinion, he nevertheless found that the Veteran currently had signs and symptoms of stiffness, muscle weakness, fatigue, and headaches attributable to fibromyalgia on examination. See Fibromyalgia Disability Benefits Questionnaire (DBQ) dated April 2017. With the Veteran's service in the Persian Gulf and his fibromyalgia manifesting to a degree of at least 10 percent disabling since separation from service, the Board finds that the criteria necessary to establish presumptive service connection has been met. See 38 C.F.R. § 3.317. Accordingly, in light of the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for fibromyalgia is warranted. Irritable Bowel Syndrome With respect to the Veteran's claimed irritable bowel syndrome, as noted above, the Board acknowledges that the Veteran is deemed a Persian Gulf veteran. However, as explained below, the Board observes that the preponderance of the evidence is against a finding that the Veteran has a qualifying chronic disability of irritable bowel syndrome for which service connection may be granted based on the presumption under 38 C.F.R. § 3.317(a)(6). Rather, the Board finds objective evidence of record that the cause of the Veteran's symptoms is due to malabsorption syndrome for which he is currently diagnosed. In this regard, the Board acknowledges the conflicting medical opinions of record. The record reflects an August 2011 VA examination report indicating a diagnosis of irritable bowel syndrome. Although there was no medical opinion provided as to the etiology of the diagnosis, the examiner indicated that the Veteran reported a history of nausea and episodic diarrhea. See August 2011 Compensation and Pension Exam Report. A July 2012 Gulf War general examination found a diagnosis of gastroesophageal reflux disease (GERD) attributable to a known etiology and not a manifestation of an unexplained multisymptom illness. There were no findings or symptoms of irritable bowel syndrome indicated on examination. See Gulf War General Medical Examination DBQ. The record reflects an April 2017 medical opinion by a VA contractor finding that the Veteran's condition "does not meet criteria for chronicity and does not meet Rome III criteria for IBS." The examiner noted the Veteran's history of diarrhea, but explained that his episodes described as "occurring at least twice a year lasting no more than five days per incident" does not establish chronicity. The examiner observed normal findings on a February 2009 colonoscopy with normal bowel series. Further, the examiner commented that "the Veteran suffers from GERD, depressive disorder, sleep disorder which enter in the differential diagnosis of IBS or may affect bowl function or symptomatology." See April 2017 Medical Opinion DBQ. A similar opinion was rendered by a VA physician in September 2017 finding that the Veteran did not have a diagnosis of IBS but another medical condition of malabsorption syndrome. In addressing the conflicting medical diagnosis of record, the examiner pointed out that the August 2011 diagnosis of IBS did not take into account the previous December 2008 VA gastroenterology service evaluation of the Veteran's diarrhea where it was determined that the "cause of the veteran's diarrhea and symptoms was malabsorption syndrome and not IBS." Noting the Veteran's reported symptoms, the September 2017 examiner concluded that the Veteran's reports of weight loss and nocturnal diarrhea were not symptoms associated with IBS, and he did not meet the Rome IV criteria for IBS. See September 2017 Medical Opinion DBQ. As for an etiological opinion on the diagnosed malabsorption syndrome, the September 2017 examiner found that the Veteran's malabsorption syndrome was not caused or the result of military service. He pointed out that the Veteran's signs and symptoms related to malabsorption began in 2008 with no gastrointestinal complaint or findings during service or within a year from discharge. See Report of Medical Examination dated October 1991. Additionally, the examiner explained that malabsorption syndrome is a diagnosable chronic illness with an explained etiology and not caused by or the result of events experienced by the Veteran during his service in Southwest Asia. Id. In view of the above, the Board finds that the most competent and probative medical evidence of record does not support a diagnosis of IBS. The Board assigns great probative value to the September 2017 VA opinion finding that the Veteran's current disability diagnosed as malabsorption syndrome is not caused by or the result of events from his service in Saudi Arabia or otherwise etiologically related to military service. The Board also observes that the 2017 VA examiner sufficiently addressed the conflicting medical evidence of record and is significantly probative in determining whether the Veteran has substantiated his claim for service connection in this case. Consideration has been given to the Veteran's assertions that his symptoms of irritable bowel syndrome are related to service. While the Veteran is competent to report symptoms observable to a layperson, such as pain, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, he is not competent to independently opine as to the specific etiology of his claimed symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, as a layperson, the Veteran is not competent to opine on a complex medical question of etiology, as this requires medical expertise. The Board finds the Veteran's statements not competent medical evidence for this purpose. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Therefore, his assertions of etiology, standing alone, have little probative value and the Board assigns more weight to the medical opinions provided by VA examiners. Based on the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for irritable bowel syndrome to include malabsorption syndrome. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for fibromyalgia is granted. Service connection for irritable bowel syndrome to include malabsorption syndrome is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs