Citation Nr: 1817150 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-04 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a compensable rating for gastroenteritis. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia issued in March 2013 The Board remanded the case in September 2015. In November 2017, the Board remanded this issue again to develop it further by addendum VA opinion. In November 2017, the VA examiner fulfilled the remand adequately by providing findings and rationales. Steagall v. West, 11 Vet. App. 268, 270-71 (1998). FINDINGS OF FACT 1. The evidence does not show that the Veteran's GERD symptoms or h. Pylori infection are etiologically related to the Veteran's service-connected gastroenteritis. 2. The competent and credible evidence does not show frequent episodes of bowel disturbance with abdominal distress associated with the service-connected gastroenteritis. CONCLUSION OF LAW The criteria for a compensable rating for gastroenteritis have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.306, 3.321, 4.114, DC 7325 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015), cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Increased Ratings Disability evaluations are determined by applying the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's enteritis is assigned a noncompensable rating under Diagnostic Code (DC) 7325, covering chronic enteritis. Chronic enteritis is rated under DC 7319, covering irritable colon syndrome. 38 C.F.R. § 4.114, DC 7325. Under Diagnostic Code 7319, a 30 percent rating is warranted for severe irritable colon syndrome, marked by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A 10 percent rating is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A noncompensable rating is warranted for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114, DC 7319. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. III. Analysis In September 2012, the Veteran asserted that his service-connected gastroenteritis is worse than currently evaluated. In order to increase the rating of the Veteran's service-connected gastroenteritis, the evidenced symptomatology must show frequent episodes of bowel disturbance with abdominal stress. 38 C.F.R. § 4.114, DC 7319. An April 2016 VA QTC examination report noted a diagnosis of gastroenteritis, resolved. The Veteran reported that the symptoms was that food wants to come out after eating The examiner did not note any symptoms and indicated that the Veteran was asymptomatic. The Veteran underwent a VA examination in April 2016. The examiner noted that the Veteran was diagnosed with gastroesophageal reflux disease (GERD) and gastroenteritis in 2011. The examiner noted that gastroenteritis "is an acute stomach and intestinal infection caused by a bacteria or virus" and that the Veteran did currently have a diagnosis of gastroenteritis, and did not experience any symptoms consistent with infectious gastroenteritis. The examiner related that the Veteran was treated several times for acute viral gastroenteritis and infectious hepatitis secondary to infectious mononucleosis when he was in active service, and that all of those conditions were acute infectious illnesses which have resolved. The examiner added that the Veteran did not experience any chronic gastric or intestinal complaints at the time of his separation from active service, and did not have any treatment for such until 2011 (18 years after separation from active service). The examiner related that the Veteran reported chronic diffuse, non-specific abdominal pain above and below the umbilicus, denied any chronic diarrhea or chronic bloody stools, and denied ever having a colonoscopy. The examiner opined that the absence of any chronic intestinal symptoms ruled out gastroenteritis. The examiner added that VA treatment records from 2011-2016 showed the Veteran had a history of alcohol abuse, pancreatitis, and GERD, and that he was treated with omeprazole. The records also showed that the Veteran tested positive for h. Pylori on serum analysis in 2013 and 2014, and the Veteran denied that he had any treatment for his h. Pylori infection. The examiner stated that there was no medical nexus of current h. Pylori infection and GERD to military service. The examiner also stated that the correct diagnosis of the Veteran's gastrointestinal disability was GERD with no functional limitations, and that his diagnosis should be changed from gastroenteritis to GERD. In November 2017, the VA examiner provided an addendum opinion. First, the examiner stated the h. Pylori infection and GERD were less likely than not (less than 50 percent probability) incurred in or caused by service. The rationale was there is no medical nexus for the Veteran's noted bacterial infection (h. Pylori) or GERD to military service because the Veteran's in-service, acute episodes of gastroenteritis resolved and there were no chronic gastric complaints during or since service until 2011-again, for approximately 18 years. Second, the examiner stated that there were no indications in service to check diagnostically for GERD or h. Pylori infection because the Veteran's symptoms in service resolved and were never reported as chronic. Thus, there is no rational basis retrospectively to suggest the in-service diagnosis of gastroenteritis, as long ago as 1990, should have been diagnosed instead as GERD or h. Pylori infection. Third, it is less likely than not that the service-connected gastroenteritis caused or aggravated the Veteran's later reported GERD or h. Pylori infection because the Veteran's treatment records do not show chronic complaints of gastroenteritis, or any similar symptoms, since his service to suggest continued infection or inflammation of the small intestine. After reviewing the entire record, the Board finds that the weight of the evidence does not demonstrate frequent episodes of bowel disturbance with abdominal stress associated with the service-connected condition, and a compensable rating for the service-connected gastroenteritis is not warranted. To the extent that the evidence shows diagnoses of GERD or h. Pylori infection, the Board finds that the weight of the competent and probative evidence demonstrates that those conditions are not related to the service-connected gastroenteritis or to service and are not for consideration in determining whether the service-connected condition warrants a compensable rating. The Board finds the VA examiner's opinions of November 2017 and April 2016 competent and probative. Moreover, the examiner's in-person examination of the Veteran in April 2016 and further examination of the Veteran's records in November 2017 together provide probative findings and rationales of the Veteran's lack of current gastroenteritis symptoms; and thus the Board accords them great weight in evaluating a compensable rating under the applicable diagnostic code. In April 2016, the Veteran denied chronic diarrhea or bloody stools to the VA examiner, leading the examiner to opine that the absence of any chronic intestinal symptoms rules out current gastroenteritis. The benefit of the doubt rule does not apply because the evidence preponderates against the claim. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. The Board denies the claim for these reasons. ORDER Entitlement to a compensable rating for gastroenteritis is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs