Citation Nr: 1808225 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-07 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a low back disability, to include as due to environmental hazards during the Persian Gulf War. 2. Entitlement to service connection for a gastrointestinal disorder (claimed as irritable bowel syndrome), to include as due to environmental hazards during the Persian Gulf War. 3. Entitlement to a nonservice-connected pension. ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran had active service from October 1986 to October 1991, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2017, the RO granted the Veteran's claim for service connection for sleep apnea. Therefore the only claims before the Board are those characterized herein. In March 2017, the Board remanded the appeal to the RO for additional development. The matter has been returned to the Board for further appellate consideration. The Veteran's service-connection claim for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's gastrointestinal condition has been determined to be a diagnosable, but medically unexplained chronic multi-symptoms illness of unknown etiology, manifesting in frequent episodes of bowel disturbance with abdominal distress. 2. The Veteran is not 65 years of age or older, nor is he shown to be permanently and totally disabled by a nonservice-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection a gastrointestinal disability are presumed to be related to the Veteran's service in the Persian Gulf. 38 U.S.C. §§ 1110, 1117, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 2. The criteria for establishing entitlement to a nonservice-connected pension benefits are not met. 38 U.S.C. §§ 1502, 1513, 1521, 5107 (West 2012); 38 C.F.R. § 3.3, 3.102, 3.159, 3.314, 3.340 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a qualifying chronic injury to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may also 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). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With a number of exceptions, VA will pay compensation to a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that (1) became manifest 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, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 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 the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom 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 multi-symptom 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2012); 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Gastrointestinal Disability The Veteran contends his gastrointestinal issues manifested during his active service, that he was treated for irritable bowel syndrome during his period of service in the Southwest Asia Theater of operations, and that symptoms still persist to this day. The Veteran's entrance and separation examinations are silent for any complaints or conditions associated with IBS. In July 1990, the Veteran's STRs showed he complained of having diarrhea and loose stools three times daily with abdominal cramping. See a July 1990 Service Treatment Record at page 9. In September 2010, the Veteran was examined by VA. The Veteran reported having diarrhea all the time (twice a day). The Veteran reported he did not experience hemorrhoids, involuntary bowel movements, vomiting or nausea. The VA examiner found no pathologic diagnosis for the Veteran's complaints. In December 2010, VA received a buddy statement from J.E. regarding the Veteran's gastrointestinal issues. J.E. wrote "I noticed [the Veteran] had issues with using the bathroom. Examples of this issue were constantly going to the bathroom. He also expressed to me that he was constantly having diarrhea or constipated followed by abdominal cramps." See December 2010 Buddy Statement from J.E. The Veteran was examined again by VA in March 2017. During this examination, the Veteran reported that he has to keep Imodium AD at home to keep the frequency of his bowel movements under control. On the average, he experiences bowel movements one to three times daily "mainly very loose stools." See March 2017 IBS VA Examination. The VA examiner opined that the Veteran's chronic diarrhea is "a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology." The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Board notes that the Veteran's DD-214 reflects that he received the Southwest Asia Service Medal and served in Southwest Asia during the Persian Gulf War. Accordingly, the Veteran's service as a Persian Gulf Veteran is not in dispute. Based on the opinion of the March 2017 VA examiner, the Veteran's gastrointestinal disability is a qualifying chronic disability under the provisions of 38 C.F.R. § 3.317, and may be presumed to be related to service in the Persian Gulf if manifesting to a compensable degree not later than December 31, 2021. Indeed, the AOJ has already made this finding in an October 2017 Supplemental Statement of the Case, but denied the Veteran's service-connection claim based on a finding that the Veteran's bowel disturbance symptoms would be noncompensable. Under 38 C.F.R. § 4.114, Diagnostic Code 7319 (irritable colon syndrome), a 10 percent rating is warranted for disability of moderate severity, with frequent episodes of bowel disturbance with abdominal distress. At the March 2017 examination, the Veteran described experiencing diarrhea up to three times daily, and has to take Imodium A-D for a couple days, 2-3 times per month. The Veteran is competent to attest to how often he experiences abdominal distress and diarrhea, and the Board finds no reason to call into question his reported history. Based on the frequent nature of his bowel disturbance with abdominal distress, the Board finds that the Veteran's gastrointestinal disability manifests in symptoms that would warrant at least a compensable rating. Thus, service connection for the Veteran's gastrointestinal disability as a manifestation of a medically unexplained chronic multi-symptom illness of unknown etiology" is presumed. 38 C.F.R. § 3.317. The benefit sought on appeal is granted. Nonservice-Connected Pension VA pension benefits are payable to veterans of a war who meet service requirements (outlined in 38 U.S.C.A. § 1521(j)) and who are age 65 or older or are permanently and totally disabled from a non-service-connected disability not the result of their own willful misconduct. 38 U.S.C.A. §§ 1513, 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A person is considered to be permanently and totally disabled such person is: (1) a patient in a nursing home for long-term care because of a disability; (2) disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from either (i) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or (ii) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 U.S.C.A. § 1502(a); 38 C.F.R. § 3.3(a)(3)(vi)(B); see also 38 C.F.R. § 3.340. The evidence of record shows the Veteran is 50 years of age. The record does not show, and the Veteran does not assert, that he is a patient in a nursing home or has been determined to be disabled by the Social Security Administration (SSA). Therefore, to establish entitlement to VA pension he must show unemployability due to permanent disability, disability sufficient to render it impossible for the average person to follow a substantially gainful occupation or that he has a disease or injury determined by the Secretary to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. The evidence of record shows the Veteran is employed at a pasta bakery and a grocery store. Indeed, the Veteran was seen by a VA examiner in March 2017. During that examination, the examiner noted "The Veteran states his present job accommodations make it easier on his back." See March 2017 Thoracolumbar Spine Examination at page 2. This evidence of employment shows the Veteran is able to secure and follow a substantially gainful occupation and thus he does not meet the criteria for entitlement to a nonservice connected pension. Therefore, the preponderance of the evidence being against the claim, the benefit of the doubt doctrine does not apply. For this reason, the claim must be denied. 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017); Gilbert, supra. ORDER Service connection for a gastrointestinal disability is granted. Entitlement to a nonservice connected pension is denied. REMAND The Veteran contends that his current chronic low back pain began during his active service. He first remembers experiencing low back pain after a company road march with a 75 pound backpack, while in service. The Veteran's entrance examination is silent for any complaints or conditions involving his back. In May 1987, the Veteran reported left sided low back pain with mild tenderness over the left paravertebral area when bending over. The examiner described it as a very mild lumbosacral strain and prescribed a pain relieving ointment. See May 1987 Entry in Service Treatment Records at page 76. The Veteran complained again of lumbar pain six days after a motor vehicle accident in May 1990. X-rays at the time were interpreted within normal limits. The Veteran's separation examination is silent for any complaints or condition involving his back. In September 2010, the Veteran's thoracolumbar spine was examined by VA. The examiner noted "no physical abnormalities of the spine or musculoskeletal system." See September 2010 VA Examination at page 2. The Veteran stated that getting up out of and sitting down in a chair repeatedly provoked a dull ached in his right lower back. Bending over and twisting his back also caused pain. The examiner reported "tenderness to direct palpation right mid and lower paralumbar muscle." Id. at 12. Flexion, right side bending, left side bending and right rotation, while all normal, caused pain to the right paralumbar muscle. Muscle strength was normal. In December 2010, VA received a buddy statement from J.E. J.E. reports that while being stationed at Fort Bragg, he shared a room with the Veteran. J.E. wrote "one day after a company march with backpacks [the Veteran] expressed that he was having severe pain in his lower back. I noticed after a couple days that he was walking with discomfort. I asked him was it still his back and he said yes." See Buddy Statement from J.E. The Veteran was examined again by the VA in March 2017. The VA examiner was asked to determine if the Veteran's low back pain was related to his military service or his Southwest Asia environmental exposure. X-rays showed a slight narrowing L5-S1 which the VA examiner speculated "could be early degenerative disk disease but [such] has not been established." See March 2017 VA Examination at page 7. The Veteran reported experiencing daily back pain with prolonged standing and bending. Twisting and rotating bothered him the most. He also reported experiencing low back pain when sleeping in awkward positions. Upon examination of the Veteran, the examiner noted localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The examiner also noted pain with range of motion. The examiner opined the Veteran's low back pain "was less likely than not caused by the claimed in-service injury, event or illness." See March 2017 VA Examination. The rationale provided was that "his chronic low back pain appears to be mechanical musculoskeletal related, but there has been no established etiology for his complaint." The examiner further noted the Veteran's low back pain is a "diagnosable chronic multi-symptom illness with a partially explained etiology." As the examiner diagnosed the Veteran with a diagnosable chronic multi-system illness with a "partially" explained etiology, he should have provided a medical opinion, with supporting rationale, as to whether it is "at least as likely as not" that the disability pattern or diagnosed disease was related to a specific exposure event experienced by the Veteran during service in Southwest Asia, or to his other in-service complaints of back pain. The examiner did not reach that question or provide adequate rationale to support his negative opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for another VA spine examination to assess the nature and origin of the Veteran's back pain. The claims file should be made available to, and reviewed by the VA examiner. Upon review of the record, interview of the Veteran and examination, the examiner should respond to each of the following: a.) Identify all low back disorders present during the period of the claim. With respect to each diagnosed disorder, is it at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to the Veterans period of service, to include documented complaints of back pain prior to serving in the Persian Gulf, as well as exposure to environmental hazards while serving in the Persian Gulf? b.) If there are objective manifestations of a low back disability that are not due to a known clinical diagnosis, the examiner should identify those manifestations and indicate whether it is at least as likely as not that the manifestations are due to an undiagnosed illness, a chronic multisymptom disability of unknown etiology, or a chronic multi-symptom illness with a partially explained etiology. If the examiner notes that back pain is at least as likely a manifestation of a chronic multisymptom disability of partially explained etiology, the examiner should still provide an opinion as to whether it is at least as likely as not that such had its onset in, or is otherwise related to the Veteran's period of service, to include exposure to environmental hazards while serving in the Persian Gulf. A rationale for all opinions expressed must be provided. 2. Then readjudicate the appeal. If the benefit sought is denied, issue the Veteran and his representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter 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 (West 2012). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs