Citation Nr: 18154797 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-10 313 DATE: December 4, 2018 ORDER Entitlement to service connection for a chronic gastrointestinal disorder, claimed as irritable bowel syndrome (IBS), is denied. REMANDED Entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD, is remanded. FINDING OF FACT A chronic gastrointestinal disorder, to include IBS, was not manifested in service; and the Veteran's current gastrointestinal disorder, diagnosed as IBS, first manifested in 2012, years after discharge and is not otherwise shown to be related to her active duty. CONCLUSION OF LAW Service connection for IBS is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from October 2003 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. As reflected on the title page, this appeal is expanded from the Veteran's original claim of IBS to include all chronic gastrointestinal disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). Entitlement to service connection for irritable bowel syndrome (IBS) The Veteran is seeking entitlement to service connection for IBS as incidental to exposure of “pathogens” stemming from an Indonesian tsunami relief effort. See May 2015 VA Form 9 (“IBS condition related to airborne and direct contact with pathogens aboard ship and on land during humanitarian mission after Indonesian tsunami”). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). Post-service medical evidence reflects that the Veteran was first treated and diagnosed with IBS in 2012, which was then managed with medication and afterward, denied on a semi-regular basis. See, e.g., April 2012 VAMC Psychiatry Consult (“Axis 3:…IBS”); July 2012 VAMC Primary Care note (“pt has been having exacerbations of irritable bowel syndrome associated with sudden onset diarrhea, and abdominal pain”); November 2014 VAMC Rheumatology Consult (“Abdomen: denies abdominal pain, nausea, vomiting diarrhea”); August 2016 VAMC OB GYN note (“She has no bowel symptoms such as diarrhea or constipation or nausea”); December 2017 VAMC Physician Note (“No ABD tenderness…no constipation…no diarrhea”). Although current medical documentation strongly suggests that the Veteran does not have a current chronic gastrointestinal disorder, in consideration of her past medical history the Board finds that when viewing the evidence in a light most favorable to the Veteran, the first element of service connection has been satisfied. Unfortunately, the Board finds that the remaining elements of service connection have not been met. In the present case, there is no evidence of record to indicate that the Veteran's IBS may be related to service. The Veteran herself has provided statements that the disorder is related to service, but the service treatment records do not reflect any gastrointestinal complaints other than treatment for abdominal pain in 2006 which appeared to be OB GYN related and transitory as it was not mentioned upon discharge in the October 2007 self-report of medical history. The only evidence of record relating the Veteran's claimed disability to service is the Veteran's own general conclusory statement, which does not meet the low threshold of an indication that the claimed disability is due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Consequently, VA is under no duty to afford the Veteran a VA examination and opinion. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges the 2006 complaint of abdominal distress, but absent the isolated treatment, there does not appear to be any IBS or other GI medical symptomology until 2012, and none since that time. The Board points out that the passage of so many years between discharge from active service in 2007 and the objective documentation of a claimed disability in 2012 is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no credible persuasive evidence or opinion that there is a medical relationship, or nexus, between the IBS and the Veteran's active service, to include exposure to tsunami related “pathogens.” The Veteran has not met her burden of proof, and thus the evidence of record is insufficient to substantiate the claim for service connection. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a gastrointestinal disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). REASONS FOR REMAND Entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD is remanded. The Veteran contends that her current sleep disorder is due to or aggravated by her service-connected PTSD. See May 2015 VA Form 9. Service treatment records reflect complaints of sleeping trouble associated with her in-service mental health visits and identified during her October 2007 discharge, and post-service documentation associated with the record reflects a current diagnosis of a sleep disorder. See October 2007 Self-Report of Medical History (“Frequent Trouble Sleeping…Yes”); see also February 2018 VAMC Psychiatry Consult (“Sleep patient started CPAP machine in early January 2016 for sleep apnea”). Her reported effect of her service-connected PTSD disability on her ongoing sleep symptoms and current diagnoses indicate a possible relationship to service or service connected disability and meet the low threshold set forth in McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). An examination is needed to clarify whether any current sleep disorder is related to service, to include as due to her service-connected psychiatric disability. The matter is REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records. 2. Assist the Veteran with the procurement of any potentially relevant private treatment providers not previously associated with the file. All attempts at assistance with this undertaking should be documented. 3. Forward the Veteran's claims file to an appropriate examiner to determine the nature and etiology of any current sleep disorder. The examiner is asked to provide an opinion as to the following: (A) Whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed sleep disability, including sleep apnea, had its clinical onset during active service or is related to any incident of service. (B) Whether it is at least as likely as not (i.e., 50% or greater probability) that any diagnosed sleep disability, including sleep apnea, was either (a) caused by, or (b) aggravated (worsened) by the Veteran's service-connected PTSD. The examiner must provide reasons for each opinion provided, whether favorable or unfavorable, citing to the lay evidence, as well as, other evidence in the record. These reasons should discuss the Veteran's lay statements and in-service reports of sleeping trouble, including the September 2007 Report of Medical History (“lose sleep because of knee pain and the pinching of nerve and back pain cause me to lose sleep”) and in-service notations of mental health associated insomnia. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel