Citation Nr: 1803679 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-11 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right great toe disability. 2. Entitlement to service connection for a pulmonary disability, to include bronchitis. 3. Entitlement to service connection for sleep apnea, to include as secondary to his service-connected allergic rhinitis and/or his service-connected posttraumatic stress disorder and/or bronchitis. 4. Entitlement to service connection for a gastrointestinal disorder to include chronic constipation, and irritable bowel syndrome to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to July 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran provided testimony before a Veterans Law Judge (VLJ) in May 2015. A transcript of the hearing is of record. In May 2017, the Veteran was notified that the VLJ who conducted the May 2015 hearing is no longer employed by the Board and a new hearing was offered. The Veteran responded in June 2017 indicating he does not wish to have a new hearing and asked that the matter be decided based upon the evidence of record. These issues were before the Board in October 2015 and remanded for additional development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). In a January 2016 rating decision, the Appeals Management Center (AMC) granted service connection and assigned initial ratings for hypertension and upper respiratory infection. In an April 2016 rating decision the RO granted service connection and assigned an initial rating for allergic rhinitis. These decisions represent a complete grant of benefits sought as to these issues and they are no longer before the Board. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). As discussed within, the Veteran was granted service connection for allergic rhinitis in April 2016. Based on evidence submitted during the Veteran's November 2015 VA examination for sleep apnea, the Board has recharacterized this issue on appeal as reflected on the title page. Id. The issues of entitlement to service connection for a pulmonary disability, sleep apnea and a right great toe disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent and credible evidence is against a finding that the Veteran has a gastrointestinal disorder causally related to, or aggravated by active service. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 C.F.R. § 3.317, a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided that such disability (1) became manifest either 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 December 31, 2020, and (2) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines warrants a presumption of service connection. See 38 U.S.C. § 1117(a)(2)(A), (B), (C); 38 C.F.R. § 3.317(a)(2)(i)(B). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). The term "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. 38 C.F.R. § 3.317(a)(2)(ii). Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "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). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the 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. 38 C.F.R. § 3.317 (b). Gastrointestinal Disorder The Veteran seeks entitlement to service connection for a gastrointestinal (GI) disorder to include chronic constipation, and irritable bowel syndrome, or as secondary to an undiagnosed illness. The Veteran served in Southwest Asia during the Persian Gulf War. Service treatment records (STRs) show the Veteran sought medical treatment in June 1983, the Veteran had stomach cramps and vomiting that was diagnosed as a symptom of viral syndrome. The Veteran was seen in February 1984 with diarrhea and diagnosed with the flu. The Veteran was afforded a Gulf War Guidelines examination in January 2011. The Veteran reported to the examiner that he did not have regular bowel movements. The Veteran described his GI condition as hard stools and constipation lasting up to seven days. The Veteran denied having diarrhea. The Veteran also reported that while he was deployed to Southwest Asia, he was exposed to pyridostigmine tablets, demolition munitions, burn pits, smoke, multiple vaccines, and fuel fumes. On examination, the examiner reported the Veteran's abdomen was soft, nontender, with active and normal bowel sounds in all quadrants. There was also no hepatosplenomegaly or masses. The examiner diagnosed the Veteran with chronic constipation. The examiner reported that this diagnosis is not consistent with irritable bowel syndrome (IBS) and that chronic constipation is a diagnosable chronic illness with a partially explained etiology. The examiner further reported: There are multiple and varied etiologies for the development of constipation found in the medical literature. Infrequently, constipation is the first manifestation of metabolic, neurologic or obstructive intestinal disease and more often it occurs as a side effect of commonly used drugs. There is no indication in the medical literature to suggest that constipation is the result of smoke, particles from oil well fires, exposure to pesticides and insecticides, exposure to indigenous infectious disease, exposure to solvent and fuel fumes, ingestion of pyridostigmine bromide tablets, as a nerve gas antidote, the combined effect of multiple vaccines, inhalation of ultra fine-grain sand particles or exposure to burn pit fires. In March 2014 and May 2014, private medical records document that the Veteran sought treatment for his constipation. The Veteran reported that he has had constipation for the previous five years. The Veteran testified at a Board hearing in May 2015where he described his GI symptoms as diarrhea, cramping and constipation. The Veteran stated that he mostly self-treated with over the counter medications. The Veteran testified that prior to his deployment to the Persian Gulf War, his bowel movements were normal. It was after his deployment that the symptoms started. Pursuant to the Board's October 2015 remand, the Veteran was afforded a VA examination to provide an opinion whether any of the Veteran's medications to treat his service-connected disabilities could cause his GI symptoms of chronic constipation. The examiner opined that the Veteran's diagnosed chronic constipation was less likely than not related to his active military service. The rationale supporting the opinion was that according to the medical records, the Veteran had occasional diarrhea associated with viral symptomology and there was no evidence that a chronic gastrointestinal condition was diagnosed while he was on active duty. The record is silent for GI complaints between 1999 and 2014 and no link can be made between the Veteran's current constipation and active duty. The examiner also opined that after a review of the Veteran's medication list and the date of onset of symptomology there was no evidence linking the Veteran's constipation to any medication used to treat a service connected disability. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness, is not warranted. The Veteran's STRs show that although the Veteran experienced episodes of diarrhea during service, it was associated as a symptom of viral illness. The Veteran's diarrhea was never diagnosed as a chronic illness or disease. Following service, the Veteran reported he experienced constipation and irregular bowel movements. However, the irregular bowel movements were diagnosed as chronic constipation in January 2011. The Board acknowledges the Veteran's assertions that his GI symptoms did not start until after he returned from his Persian Gulf War deployment. The Veteran is competent to report symptoms that are readily apparent to him because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide a diagnosis for these symptoms in this case. The issue of determining the etiology of a GI condition is medically complex and requires specialized knowledge and experience that the Veteran has not demonstrated he has. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Kahana v. Shinseki, 24 Vet. App. 428 (2011). In contrast, the VA examiner, who provided the diagnosis of chronic diarrhea, is competent to make a diagnosis and provide an etiological opinion. The VA examiner also opined that none of the Veteran's medications taken for his service-connected disabilities could cause the GI symptoms the Veteran had experienced. In regards to the Veteran's claims that his exposure to hazards and vaccinations while deployed in Southwest Asia, the examiner provided the opinion that the medical literature does not provide a link between the hazards identified by the Veteran with his chronic constipation diagnosis. Consequently, the Board finds the VA examiner's opinion that the Veteran's chronic constipation is not caused or incurred during service more persuasive. Service connection secondary to an undiagnosed condition is also not warranted her, since his GI condition has a diagnosis of chronic constipation that has a partially understood etiology. 38 C.F.R. § 3.317. In sum, the Board finds that the preponderance of the evidence demonstrates that the Veteran is not entitled to service connection for a GI disorder, diagnosed as chronic constipation. 38 U.S.C § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. ORDER Entitlement to service connection for a gastrointestinal disorder to include chronic constipation, and irritable bowel syndrome to include as secondary to an undiagnosed illness is denied. REMAND The Veteran seeks entitlement to service connection for a pulmonary disorder, to include chronic bronchitis; however, clarification of his already service-connected respiratory disabilities is needed prior to adjudication of this claim. When the Board remanded the appeal in October 2015, it also remanded a claim of service connection for a disability claimed as upper respiratory infection. In a January 2016 rating decision, the AMC granted service connection for upper respiratory infection, effective June 2011. In an April 2016 rating decision, the RO granted service connection and assigned a separate rating for allergic rhinitis, effective March 2016. The Codesheet associated with the April 2016 rating shows two separate disabilities; however, subsequent Codesheets show only one disability, with an effective date of June 2011. There is no explanation of the procedural background nor is there any indication that the Veteran was notified of any action. It is unclear whether the current claim, service connection for a pulmonary disability to include bronchitis, may be contemplated by the already service-connected disabilities. Further development is also required on right great toe and sleep apnea claims. In the October 2015 remand, the Board pointed out that the June 2012 VA examination pertaining to the Veteran's right great toe claim was inadequate because the examiner did not discuss the Veteran's lay statements of having pain during and following service. A new VA examination was ordered with instructions for the examiner to consider the Veteran's lay assertions that he had pain in his right great toe during and after active service. Although, the November 2015 examiner acknowledges the Veteran's statements, the examiner discounted the Veteran's comments because the Veteran's records were silent for any right great toe complaints or diagnosis. On remand, the VA examiner should interview the Veteran to assess his right great toe, to include what, if any, self-treatment he may have performed and why he had not sought treatment from a medical provider prior to filing his claim. Regarding the Veteran's sleep apnea claim, the Veteran expanded his sleep apnea claim to include as due to bronchitis. Given the recent grants of service connection for upper respiratory infection and allergic rhinitis, secondary service connection should be considered. In the February 2014 VA examination opinion, the examiner based the negative nexus opinion on the Veteran's obesity. However, the medical literature cited by the February 2014 examiner to support the opinion also specifically states that nasal congestion confers a two fold increase in the prevalence of sleep apnea. Neither the February 2014 nor the November 2015 VA opinions address this risk factor for sleep apnea despite the fact that the Veteran has a long history of nasal congestion that subsequently led to his receiving service-connection for allergic rhinitis. On remand the RO should obtain a supplemental VA examination addressing the Veteran's history of nasal congestion and whether it could have caused his sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Clarify the procedural history of the January 2016 and April 2016 rating decisions that granted service connection and assigned separate ratings for upper respiratory infection and allergic rhinitis and the June 2016 i, without explanation or appropriate notice. 2. After completion of the foregoing, schedule the Veteran for a VA examination with the appropriate VA examiner to obtain a supplemental medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right great toe is causally related service. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner should discuss and address the detailed history taken from the Veteran in the opinion. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner should so state, with a complete explanation in support of that finding. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Forward the claims file, to include a complete copy of this remand, to the November 2015 VA examiner to obtain a supplemental medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea is causally related service to include as secondary to any service-connected disability. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. As the Veteran is service-connected for allergic rhinitis, the examiner should discuss and address the medical literature cited to support the March 2014 opinion that nasal congestion confers a two fold increase in the prevalence of sleep apnea. If the March 2015 examiner is not available or otherwise determines the opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Then, readjudicate the claims, to include whether service connection is warranted for any pulmonary disability, to include bronchitis, as secondary to service-connected respiratory disabilities. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs