Citation Nr: 18142655 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-32 393 DATE: October 17, 2018 ORDER Service connection for irritable bowel syndrome (IBS) is granted. REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to an initial rating in excess of 50 percent for anxiety disorder and depressive disorder is remanded. FINDING OF FACT The Veteran has a current diagnosis of IBS that manifested to a compensable degree during a six-month period since service in Southwest Asia. CONCLUSION OF LAW The criteria for presumptive service connection for IBS as due to a qualifying chronic disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1983 to May 1987, and from October 1989 to May 1998, to include service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service Connection for IBS—Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for a chronic disability resulting from an undiagnosed illness that became manifested either during active 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, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom 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). For purposes of this section, "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). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In this case, the Veteran seeks service connection for IBS. Service treatment records include a July 1985 note where the Veteran was seen for “burning” pain to the mid-abdomen. The pain was noted to increase when drinking soda and the episodes lasted 30-60 seconds. The Veteran denied any permanent chronic gastrointestinal-tract disorders and indicated that he had normal bowel movements. An assessment of fecal retention was noted that the Veteran was informed of proper dietary habits. In April 1987 and January 1998 Reports of Medical Examination, completed at service separation from the Veteran’s first and second period of active duty service, clinical evaluations of the Veteran’s abdomen were normal, and there was no indication of IBS or other gastrointestinal disorders. Moreover, in a January 1998 Report of Medical History, completed by the Veteran at service separation, he specifically checked “NO” as to having “stomach, liver, or intestinal trouble.” The Veteran also did not report any symptoms pertaining to IBS or any other intestinal disorders. Post-service private treatment records include an April 2011 note from the Florida Hospital Waterman. At that time, the Veteran reported having abdominal pain since the day prior. After performing a physical examination and diagnostic imaging, the Veteran was diagnosed with a possible small bowel obstruction. Post-service VA treatment records include a May 2012 VA ambulatory care note where the Veteran was seen for intermittent abdominal pain and variable changes in bowel movement patters. During the evaluation, the Veteran complained of these symptoms for the “past 1-2 yrs.” At that time, the Veteran did not report that his symptoms first manifested in service. The Veteran was afforded a VA examination in September 2013 during which the examiner confirmed a diagnosis of IBS. During the evaluation, the Veteran reported that he first had abdominal pain and fluctuating bowel movements while in service. The examiner reviewed the claims file and then opined that the Veteran’s IBS was not related to service, to include Gulf War exposure. In this regard, the examiner indicated that there was no nexus with service, nor was the Veteran diagnosed with IBS in service. Further, the examiner stated that there was a “time void” between the current condition and service. The Veteran has not submitted a competent medical opinion in favor of his claim. The Board finds that presumptive service connection for IBS is warranted. As indicated, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf veteran; (2) who exhibits objective indications of a medically unexplained chronic multisymptom illness (such as fibromyalgia or IBS) that is defined by a cluster of signs or symptoms; (3) which 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, 2021; and (4) that the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118 (2012); 38 C.F.R. § 3.317 (2017); 76 Fed. Reg. 81,834 (December 29, 2011). In the present case, the Veteran served in the Southwest Asia Theater of Operations during the Gulf War as shown by service personnel records. Thus, the Board finds that the Veteran is a "Persian Gulf Veteran" for the purposes of 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317 (e)(1). Further, the Veteran has a confirmed diagnosis of IBS that has not been attributed to any other known clinical diagnosis. Finally, the evidence demonstrates that the Veteran’s IBS manifested to a compensable degree for at least six months prior to his diagnosis in 2012. In this regard, a compensable disability rating for IBS requires frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Post-service VA treatment records dated in May 2012 show that the Veteran was seen for intermittent abdominal pain and variable changes in bowel movement patters. During the evaluation, the Veteran complained of these symptoms for the “past 1-2 yrs.” For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's IBS has manifested to a compensable level for at least six months prior to his diagnosis. As the Veteran is a "Persian Gulf Veteran" and IBS is considered a qualifying chronic disability under 38 C.F.R. § 3.317, the Board finds that the criteria for service connection for IBS have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Chronic Fatigue Syndrome (CFS) As a threshold matter, military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under 38 C.F.R. § 4.88a (2017), for VA purposes, the diagnosis of chronic fatigue syndrome requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, (x) sleep disturbance. The Veteran was afforded a Gulf War VA examination in August 2013. During the evaluation, the Veteran reported that his fatigue began in 1998 and that it had worsened over time. He indicated that 3-4 days a week he spent most of the day in bed. It was then noted that the Veteran’s fatigue did not last for 24 hours or longer and only restricted routine daily activities by 50 percent. There was no evidence of pharyngitis, lymphadenopathy, and no discernable axillary lymph nodes; however, the Veteran did note that his lymph nodes were tender. The examiner indicated that the criteria for a diagnosis of CFS was not established. In the closing portion of the examination, the examiner noted that the Veteran’s onset of debilitating fatigue was severe enough to reduce his average daily activities below 50 percent. The Board finds that the August 2013 VA examination is inadequate as it is contradictory and does not sufficiently address the diagnostic criteria for CFS. In this regard, in one portion of the report, the examiner indicated that the Veteran’s fatigue did not restrict routine daily activities below 50 percent; however, in a separate section of the report, the examiner noted that the Veteran’s fatigue was severe enough to reduce his average daily activities below 50 percent. Further, the Veteran reported that his lymph nodes were tender, and that he had muscle aches, and sleep disturbance—all of which are symptoms contemplated with a diagnosis of CFS. The examiner did not address other relevant possible symptoms, including whether the Veteran had fatigue lasting 24 hours or longer after exercise, headaches, migratory joint pains, or neuropsychologic symptoms. For these reasons, the Board finds that a new VA examination is required in order to assist in determining whether the Veteran meets the diagnostic criteria for CFS. Psychiatric Disability The Board notes that the Veteran was last afforded a VA psychiatric examination in September 2013, more than 5 years ago. Moreover, since that time, VA treatment records show that the Veteran’s psychiatric medication has been increased. See e. g., March 2016 VA treatment note (increase in Wellbutrin and Prazosin added to control nightmares). As such, a remand is necessary so that the Veteran may be afforded a new VA examination to ascertain the current severity of her service-connected psychiatric disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following actions: 1. Obtain all updated VA treatment records and associate them with the record. 2. Then, schedule the Veteran for a VA Gulf War examination to address the nature, extent, onset, and/or etiology of the claimed CFS. The examiner should review the claims file and note this review in the report. The examiner should then address the following: (a.) Confirm whether the Veteran has a diagnosis of CFS. The examiner must include a discussion of the Verena’s symptoms in rendering a diagnosis. (b.) If the examiner provides a diagnosis, the examiner must state whether it is at least as likely as not that the diagnosed CFS is related to or had its onset in service or is otherwise related to service. In doing so, the examiner must acknowledge and discuss any lay report of recurrent symptoms since service. (c.) The examiner is asked to provide a rationale for each opinion provided. 3. Schedule the Veteran for a VA psychiatric examination to assist in determining the severity of the Veteran’s anxiety and depressive disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. 4. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel