Citation Nr: 18158758 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-46 338 DATE: December 18, 2018 ORDER Entitlement to service connection for irritable bowel syndrome is granted. Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for acid reflux is denied. REMANDED Entitlement to service connection for a bilateral knee disability, to include as due to Gulf War illness, is remanded. Entitlement to service connection for a shoulder disability, to include as due to Gulf War illness, is remanded. Entitlement to service connection for a neck disability, to include as due to Gulf War illness, is remanded. Entitlement to service connection for a bilateral ankle disability, to include as due to Gulf War illness, is remanded. Entitlement to service connection for Reiter’s syndrome, claimed as arthritis, to include as due to Gulf War illness, is remanded. Entitlement to service connection for a low back disability, to include as due to Gulf War illness, is remanded. Entitlement to service connection for restless leg syndrome is remanded. Entitlement to service connection for uveitis is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for diabetes mellitus, Type II is remanded. Entitlement to service connection for diabetic neuropathy is remanded. Entitlement to service connection for depression is remanded. FINDINGS OF FACT 1. The Veteran has confirmed service in Southwest Asia during the Persian Gulf War. 2. Resolving reasonable doubt in the Veteran’s favor, he has irritable bowel syndrome, a functional gastrointestinal disorder, which has manifested to a compensable degree and is not attributable to intercurrent causes. 3. The Veteran does not have a current diagnosis of fibromyalgia and has not had fibromyalgia during the appeal period. 4. The Veteran does not have a current diagnosis of acid reflux and has not had acid reflux during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for irritable bowel syndrome are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317(a), 4.7, 4.114, Diagnostic Code 7332. 2. The criteria for entitlement to service connection for fibromyalgia have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § § 3.102, 3.303, 3.317. 3. The criteria for entitlement to service connection for acid reflux have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R. § § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to October 1991. He had verified service in Southwest Asia from September 1990 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in September 2014 and February 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran’s agent submitted a statement in May 2018 requesting consideration of his appeal under the Rapid Appeals Modernization Program (RAMP). However, the appeal had already been activated at the Board at that time and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran’s Certificate of Release or Discharge, DD Form 214, indicates that he served in Southwest Asia from September 1990 to April 1991, as noted above. Service connection may be granted on a presumptive basis for a veteran who served in Southwest Asia and who exhibits objective indications of qualifying chronic disability, which became manifest 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, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of any of the following): 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; and any diagnosed illness that the Secretary determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2)(i). 1. Entitlement to service connection for irritable bowel syndrome The Board concludes that the Veteran has a current diagnosis of irritable bowel syndrome (IBS) that is related to his environmental exposures in service. During a VA examination in November 2014, the examiner noted that the Veteran was diagnosed with IBS in 2013. The Veteran was prescribed medication to control his intestinal condition. As indicated, the Veteran served during the Persian Gulf War period in Southwest Asia. Irritable bowel syndrome is defined to be a qualifying presumptive condition. The question for the Board, therefore, is whether the Veteran’s IBS has manifested to a compensable degree. Under Diagnostic Code 7319 for irritable colon syndrome, to be compensable, there must be moderate symptoms with frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114. The November 2014 examination report indicated that the Veteran had occasional episodes of bowel disturbance with abdominal distress but noted episodes of exacerbations and/or attacks of the intestinal condition, including low abdominal cramping and diarrhea, 7 or more times in the previous 12 months. The examiner further indicated that the Veteran had diarrhea episodes after eating, 3 to 4 times daily. Resolving the benefit of doubt in the Veteran’s favor, it is at least as likely as not that the Veteran’s IBS more nearly approximates the compensable rating criteria. 38 C.F.R. § 4.7. In sum, the Veteran’s IBS has manifested to a compensable degree, and therefore service connection under 38 C.F.R. § 3.317 is appropriate. 2. Entitlement to service connection for fibromyalgia 3. Entitlement to service connection for acid reflux The Veteran claims that he has fibromyalgia and acid reflux related to his service in Southwest Asia during the Gulf War. After a review of the available treatment records, there is no evidence of treatment or a diagnosis for either fibromyalgia or acid reflux. Although VA treatment records dated in November 2013 reflect a medical history of gastroesophageal reflux disease (GERD) in the 1990’s, there is no evidence of treatment for such condition during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.). Without evidence of a current diagnosis or complaints related to the claimed conditions, the first element of service connection has not been met and the claims must be denied. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board further finds that the Veteran is not shown to have an undiagnosed illness involving fibromyalgia or his claimed acid reflux. As noted above, in addition to having no diagnosis of fibromyalgia or acid reflux, there is no record of any complaints or treatment for symptoms of fibromyalgia or acid reflux at any time during the appeal period. The Board therefore finds that the Veteran is not shown to have a “qualifying chronic disability” involving fibromyalgia or acid reflux. See 38 C.F.R. § 3.317(a)(2)(i). Accordingly, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are not applicable. Because a diagnosis of fibromyalgia and acid reflux has not been shown, and because there is no evidence of record to establish that symptoms of fibromyalgia or acid reflux became manifest to a degree of 10 percent at any point since service, the preponderance of the evidence is against the service connection claims, the benefit-of-the-doubt rule does not apply, and the claims for entitlement to service connection for fibromyalgia and acid reflux must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability, to include as due to Gulf War illness, is remanded. 2. Entitlement to service connection for a shoulder disability, to include as due to Gulf War illness, is remanded. 3. Entitlement to service connection for a neck disability, to include as due to Gulf War illness, is remanded. 4. Entitlement to service connection for a bilateral ankle disability, to include as due to Gulf War illness, is remanded. 5. Entitlement to service connection for Reiter’s syndrome, claimed as arthritis, to include as due to Gulf War illness, is remanded. 6. Entitlement to service connection for a low back disability, to include as due to Gulf War illness, is remanded. The Veteran’s post-service treatment records note complaints of knee, shoulder, neck, ankle, and low back pain. These conditions were suggested to have been caused by reactive arthritis, or Reiter’s syndrome. However, the records are not clear as to whether the Veteran has arthritis in his various joints or even that he has a diagnosis of Reiter’s syndrome. As joint pain can be a manifestation of an undiagnosed illness for purposes of presumptive service connection under 38 C.F.R. § 3.317, a Gulf War General Medical examination should be obtained. The Board acknowledges the November 2014 Gulf War General Medical examination and notes that it is mostly blank. Indeed, the examiner failed to address the Veteran’s reported complaints and the VA treatment records and concluded that there was a normal physical examination without further explanation. 7. Entitlement to service connection for restless leg syndrome is remanded. 8. Entitlement to service connection for uveitis is remanded. 9. Entitlement to service connection for sleep apnea is remanded. 10. Entitlement to service connection for hypertension is remanded. 11. Entitlement to service connection for erectile dysfunction is remanded. 12. Entitlement to service connection for diabetes mellitus, Type II is remanded. 13. Entitlement to service connection for diabetic neuropathy is remanded. 14. Entitlement to service connection for depression is remanded. The Veteran is presumed to have been exposed to environmental hazards during his period of active service in Southwest Asia. The Veteran’s post-service treatment records reflect diagnoses of restless leg syndrome, uveitis, sleep apnea, hypertension, erectile dysfunction, diabetes mellitus, Type II, diabetic neuropathy, and depressive disorder during the appeal period. Although these conditions are not subject to presumptive service connection under 38 C.F.R. § 3.317, the Veteran is not precluded from establishing service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev’d in part, Combee v. Principi, 4 Vet. App. 78 (1993). The Veteran has not been afforded a VA examination in connection with these conditions. Accordingly, one should be arranged to address the nature and etiology of each claimed disability. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA and private treatment records relevant to the Veteran’s claims and associate the records with the claims file. 2. Thereafter, schedule the Veteran for an examination with an appropriate clinician to determine whether the Veteran’s bilateral knee, shoulder, neck, ankle, and low back pain are related to his military service, to include as a result of the Veteran’s service in the Persian Gulf War. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all applicable conditions and diagnoses, to include whether or not the Veteran has Reiter’s syndrome. All necessary testing to rule out a diagnosis should be performed. For each knee, shoulder, neck, ankle, or low back condition identified, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner must also characterize each condition (to include pain) as belonging to one of four disability patterns: (1) undiagnosed illness; (2) diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (3) diagnosable multisymptom illness with a partially explained etiology; or (4) disease with a clear and specific etiology. The examiner should address any pertinent evidence of record, including the VA imaging results dated in November 2013. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. After completing directive (1), schedule the Veteran for an examination with an appropriate clinician to determine whether the Veteran’s restless leg syndrome, uveitis, sleep apnea, hypertension, erectile dysfunction, diabetes mellitus, Type II, diabetic neuropathy, and depressive disorder are related to his military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service, including but not limited to exposure to chemical weapons or any other environmental hazards in the Southwest Asia theater of operations. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor