Citation Nr: 18149747 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 17-62 112 DATE: November 14, 2018 ORDER Entitlement to service connection for irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), and diverticulosis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s IBS, GERD, and diverticulosis began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for IBS, GERD, and diverticulosis are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge on his November 2017 substantive appeal (VA Form 9) and a hearing was scheduled for a date in September 2018. In a statement received in September 2018 (VA Form 21-4138), prior to the date of the hearing, the Veteran requested that his hearing be rescheduled. A new hearing has not yet been scheduled. Regardless, as the Board is granting service connection for IBS, GERD, and diverticulosis, this decision grants the full benefit sought on appeal. Thus, a hearing is not necessary for a fair adjudication of the Veteran’s claim. As a final preliminary matter, the Board acknowledges that the record on appeal includes a Rapid Appeals Modernization Program (RAMP) opt-in election form received in July 2018. RAMP is a program that allows veterans to opt in to the new claims and appeals process before the Veterans Appeals Improvement and Modernization Act of 2017 takes effect. However, RAMP does not apply to appeals such as this one that have already been activated at the Board (see a December 2017 “Certification of Appeal” form (VA Form 8)). Entitlement to service connection for IBS, GERD, and diverticulosis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has current gastrointestinal disability (including IBS and GERD) which had its onset in service. The Board concludes, for the following reasons, that the Veteran has current diagnoses of IBS, GERD, and diverticulosis and that the evidence is at least evenly balanced as to whether these disabilities began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). As an initial matter, the Board notes that the Veteran reported that he experienced a history of frequent indigestion on a September 1963 report of medical history form completed for purposes of entrance into service. Regardless, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). Although the Veteran is certainly competent to report a history of gastrointestinal symptoms prior to service, a veteran’s report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). There is no other evidence of any pre-existing gastrointestinal disability prior to service and the Veteran’s September 1963 entrance examination was normal. Therefore, the Board finds that the evidence is not clear and unmistakable that any gastrointestinal disability pre-existed service and was not aggravated in service and the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. Medical records, including an August 2016 VA primary care treatment note and the reports of October 2016 VA intestinal conditions and esophageal conditions examinations, show the Veteran has current diagnoses of IBS, GERD, and diverticulosis. There is also evidence of gastrointestinal symptoms in service and evidence of continuous symptoms in the years since service which indicates that the current IBS, GERD, and diverticulosis were incurred in service. In this regard, the Veteran’s service treatment records reflect that he was treated for diarrhea, abdominal cramping, and vomiting in June 1965 and was diagnosed as having gastroenteritis. He also reported during the October 2016 VA esophageal conditions examination that he experienced indigestion in service. Moreover, his post-service medical records and lay statements indicate that his gastrointestinal symptoms (including diarrhea, constipation, and indigestion) have continued in the years since service. The nurse practitioner who conducted the October 2016 VA examinations opined that the Veteran’s IBS and GERD were not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. As for IBS, the examiner reasoned that there were no objective records to indicate that the Veteran suffered dysentery in service, but that his recount of his history was logical. There were no records from his visits to private medical providers to provide objective evidence to support continued complaints. Therefore, it was not likely (“less likely than not”) that his IBS was caused by his claimed in-service illness. There was no documentation in his service treatment records of any abdominal pain or diarrhea and his separation examination did not indicate any ongoing problems. With respect to GERD, the October 2016 examiner reasoned that the Veteran reported frequent indigestion prior to service on his report of medical history form completed for purposes of entrance into service. Also, there was no documentation of reflux, indigestion, or GERD during his separation examination. In February 2017, the examiner who conducted the October 2016 VA examinations re-reviewed the Veteran’s claims file and explained that there were no service treatment records indicating a chronic gastrointestinal problem in service. Although it was clear that he experienced a bout of gastroenteritis/dysentery while in service, there were no further complaints of diarrhea in his service treatment records or at the time of his separation examination. Thus, there was no evidence that his gastrointestinal problems were ongoing after his acute illness resolved. Since there were no records of medical care for gastrointestinal problems for many years after service, there was no evidence that the Veteran had chronic gastrointestinal problems since service. Thus, it was not likely (“less likely than not”) that his IBS was caused by the claimed in-service illness. The October 2016 and February 2017 opinions are of little, if any, probative value. Specifically, although the October 2016 IBS opinion is partially based on a finding that there was no evidence of diarrhea or abdominal pain in service, the Veteran was treated for such symptoms in service in June 1965. Hence, this opinion is partially based on an inaccurate history and therefore of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Furthermore, the October 2016 and February 2017 opinions are all partially based on an absence of objective clinical evidence of treatment for continuous gastrointestinal symptoms in the years since service, and they do not take into account the Veteran’s competent reports of continuous gastrointestinal symptoms following service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran is competent to report continuous gastrointestinal problems in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous gastrointestinal symptoms in the years since service are credible. In sum, the evidence reflects that the Veteran experienced gastrointestinal problems in service and that there have been continuous gastrointestinal symptoms in the years since service. He has also been diagnosed as having current IBS, GERD, and diverticulosis. There is no adequate medical opinion contrary to a conclusion that the current IBS, GERD, and diverticulosis had their onset in service. Hence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current IBS, GERD, and diverticulosis had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed IBS, GERD, and diverticulosis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel