Citation Nr: 20004458 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 13-28 835 DATE: January 21, 2020 ORDER Entitlement to service connection for a gastrointestinal condition to include irritable bowel syndrome (IBS) (claimed as stomach problems) is denied. Entitlement to service connection for vertigo, to include as secondary to service-connected bilateral hearing loss, is denied. FINDINGS OF FACT 1. The Veteran does not have a gastrointestinal condition that is etiologically related to service. 2. The Veteran’s vertigo is not etiologically related to either his service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal condition to include IBS (claimed as stomach problems) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for vertigo, to include as secondary to service-connected bilateral hearing loss, have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to January 1979, with subsequent reserve service until August 1988. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated August 2010. The Veteran testified before the undersigned Veterans Law Judge during a September 2016 video conference hearing and a transcript of that proceeding is associated with the claims file. In August 2017 the Board issued a decision that in relevant part denied service connection for stomach problems and vertigo. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a Joint Motion for Partial Remand (JMPR) granted by CAVC in August 2018. The JMPR vacated those portions of the Board’s decision that denied service connection for stomach problems and vertigo and remanded the case to the Board. Specifically, the JMPR provides that the February 2013 VA examination relating to the Veteran’s stomach claim was inadequate because the examiner failed to consider the Veteran’s in-service complaints of pain, and that the February 2015 VA examination relating to his vertigo claim was inadequate because the examiner’s rationale contained no explanation as to why the Veteran’s vertigo could not have been aggravated by his service-connected bilateral hearing loss. In February 2019 the Board remanded the issues on appeal to obtain new medical opinions, which the RO obtained that same month. The Board finds that the RO substantially complied with the remand instructions and additional action to comply with the remand directives is not required. After the RO issued the most recent Supplemental Statement of the Case (SSOC) in March 2019, the Veteran filed additional claims for service connection and for a total rating based on unemployability. In connection with these claims, the RO obtained additional evidence (updated VA outpatient records and VA examinations). None of this additional evidence is relevant, however, to the two claims being decided at this time. These records do show continued diagnoses of the claimed conditions, but they contain no discussion as to the etiology of the disorders, so they are not relevant to the issue at hand. See, e.g., Golz v. Shinseki, 590 F.3d 1317, 1321 (2010), citing Black's Law Dictionary 1316 (8th ed. 2004) (defining "relevant" as "[l]ogically connected and tending to prove or disprove a matter in issue; having appreciable probative value-that is, rationally tending to persuade people of the probability or possibility of some alleged fact"); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). In the factual circumstances of this case, the additional evidence contains no information that would tend to prove the matters at issue, which is whether the current conditions are related to service. The Board finds no waiver of RO consideration or issuance of a supplemental statement of the case is required. The Board also notes that although the Veteran’s attorney initially requested an extension of time to submit argument and evidence following the March 2019 SSOC, he later indicated in July 2019 that all evidence had already been submitted and no additional time was needed. The Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the Veteran. The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. The RO provided the Veteran with the pertinent regulations for consideration in the July 2013 statement of the case and in supplemental statements of the case dated March 2015 and March 2019, and they are not repeated here in full. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established for those “chronic diseases” listed in 38 C.F.R. § 3.309(a) where the evidence shows a diagnosis manifest to a compensable degree within the presumptive period after service, or a continuity of symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.307; Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, neither IBS nor vertigo are on the list of eligible chronic diseases; thus those provisions are inapplicable to the claims on appeal. Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show: (1) a present disability (for which service connection is sought); (2) a service-connected disability; and (3) competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. 1. Gastrointestinal condition (claimed as stomach problems) The Veteran has a current diagnosis of IBS. See February 2013 VA examination. As such, the Board has broadened the Veteran’s claim for service connection for “stomach problems” to encompass any gastrointestinal condition, to include his currently-diagnosed IBS. See Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009). The Veteran contends that his IBS symptoms began during and have continued since service. See September 2016 Board hearing transcript. The Veteran’s service treatment records show that in August 1977 he complained of stomach cramps after eating some yogurt that “did not taste good.” At the September 2016 Board hearing, the Veteran testified that he was told at the time that his symptoms were due to something that he ate, and the treatment note shows that the medical provider assessed his symptoms as being probably viral, but possibly due to foreign substance ingestion. The Veteran’s service treatment records also show an October 1977 complaint of pain in the lower right quadrant of his abdomen, which was assessed at the time as a strain. The Veteran’s December 1978 service discharge Report of Medical Examination shows a normal clinical evaluation with no noted gastrointestinal abnormalities, defects or diagnoses. As noted above, the Veteran continued his service in the reserves after his January 1979 discharge from active duty. His service treatment records from his reserve service reflect no complaints, treatment, or diagnosis of any gastrointestinal condition. To the contrary, a July 1979 note in his service treatment records shows that the Veteran denied any significant change in his physical condition since his December 1978 physical examination, and he was exempted from undergoing a physical examination at the time. In addition, the Veteran’s May 1980 and July 1986 Reports of Medical History show that he consistently denied having or ever having had frequent indigestion or other stomach or intestinal trouble, and his contemporaneous Reports of Medical Examination show normal clinical evaluations with no noted gastrointestinal abnormalities, defects, or diagnoses. The Veteran’s post-service treatment records are silent for complaints or treatment for gastrointestinal complaints until the Veteran’s February 2013 VA examination, where the examiner diagnosed the Veteran with IBS. In February 2013, a VA examiner noted that the Veteran reported his symptoms of diarrhea, constipation, and abdominal pain started about 15-20 years prior. The examiner diagnosed the Veteran with IBS. In February 2019, the Veteran underwent a new VA examination and the RO obtained an updated medical opinion in accordance with the Board’s February 2019 remand following the JMPR. The examiner confirmed the Veteran’s prior diagnosis of IBS and opined that it is less likely than not that the Veteran’s IBS is etiologically related to his military service. The examiner explained that the Veteran’s complaints in August 1977 and October 1977 of abdominal pain and cramping to the right lower quadrant were acute based on the absence of continual treatment for any gastrointestinal symptoms. The Board finds that the February 2019 VA examination and opinion is adequate and addresses the deficiency noted in the JMPR because the examiner’s rationale addresses the Veteran’s 1977 in-service complaints. The examiner’s opinion that the Veteran’s in-service complaints were acute is supported by the Veteran’s December 1978 discharge Report of Medical Examination which showed a normal clinical evaluation and no gastrointestinal abnormalities, defects, or diagnoses, as well as the Veteran’s affirmative denials in his reserve service Reports of Medical History of any gastrointestinal symptoms and corresponding normal clinical evaluations that show no gastrointestinal abnormalities, defects, or diagnoses. The Board finds that the preponderance of the competent and credible evidence weighs against finding that the Veteran has a gastrointestinal condition, to include his currently-diagnosed IBS, that is etiologically related to his active service. The Board acknowledges that in August 1977 the Veteran complained of stomach cramps. However, the impression by the treating provider was either a virus or related to the bad yogurt the Veteran reported having eaten, and not of any chronic gastrointestinal condition. The Board also acknowledges that in October 1977 the Veteran complained of abdominal pain and cramping to the right lower quadrant. However, the impression by the treating provider was muscle strain, and not of any gastrointestinal condition. However, as noted by the February 2019 VA examiner, the absence of ongoing complaints or treatment for those complaints shows that they were acute and had resolved by the time the Veteran underwent his December 1978 discharge physical examination, which showed a normal clinical evaluation and absence any abnormalities, defects, or diagnoses relating to or indicative of the existence of any gastrointestinal condition just prior to his discharge. This evidence is highly probative because it was generated with the specific view of recording the events it described and reflects a contemporaneous record of the Veteran’s medical status at separation. In this respect, it is akin to an official record, which generally enjoys a high degree of probative value in the law. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, the Veteran has not contested the accuracy of the examination report, and nothing in the record suggests it is erroneous or incomplete. The Veteran’s statements regarding his in-service onset of continual gastrointestinal symptoms are also contradicted by his affirmative denials in his May 1980 and July 1986 Reports of Medical History and by the affirmative findings in his May 1980 and July 1986 Reports of Medical Examination that he had no abnormalities, defects, or diagnoses relating to or indicative of the existence of IBS or other gastrointestinal condition at that time. To be clear, this is not an instance where the Board is negating the probative value of the Veteran’s lay statements regarding the onset of his chronic gastrointestinal symptoms in service solely because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the contrary, the medical evidence of record, namely the evidence referenced above, which the Board finds more credible as contemporaneous evidence of the Veteran’s then-current condition given in the course of undergoing a comprehensive service physical examination, is inconsistent with and affirmatively contradicts the Veteran’s present claim of having gastrointestinal symptoms since active service. See Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (Board may find lay evidence not credible when it is contradicted by medical evidence of record); Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran not only denied having chronic gastrointestinal symptoms at separation from active duty, but continued to deny such for several years after conclusion of his active duty service, as shown by the medical history reports he himself completed in the 1980s. While the Board recognizes the Veteran’s assertions that he currently has a gastrointestinal condition that is related to his service, the Veteran is not competent to make that determination. Although lay persons are competent to provide opinions on some medical issues, the medical etiology of the specific disability in this case, IBS, falls outside the realm of common knowledge of a lay person and requires specialized training and medical diagnostic testing. Therefore, the Board finds that the Veteran’s statements of record cannot be accepted as competent evidence sufficient to establish service connection for IBS. The Veteran’s claim for service connection for a gastrointestinal condition, to include IBS, is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine and finds it inapplicable because the preponderance of the evidence is against the claim. 2. Vertigo The Veteran seeks service connection for vertigo, to include as secondary to his service-connected bilateral hearing loss. Specifically, he testified during his September 2016 Board hearing that he began noticing vertigo when he started to notice his hearing loss. As an initial matter, the Veteran does not assert that his vertigo is directly caused by an in-service event, injury, or disease, and the evidence of record does not reflect such. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of vertigo. In March 1977, the Veteran complained of ear pain and was diagnosed with otitis externa but expressly denied vertigo. His December 1978 service discharge Report of Medical Examination showed a normal clinical evaluation and absence any abnormalities, defects, or diagnoses relating to or indicative of the existence of vertigo just prior to his discharge. As noted above, the Veteran continued his service in the reserves after his January 1979 discharge from active duty. His service treatment records reflect no complaints, treatment, or diagnosis of vertigo. To the contrary, a July 1979 note in his service treatment records shows that the Veteran denied any significant change in his physical condition since his December 1978 physical examination, and he was exempted from undergoing a physical during active duty for training. In addition, the Veteran’s May 1980 and July 1986 Reports of Medical History show that he consistently denied having or ever having had dizziness, and his contemporaneous Reports of Medical Examination show normal clinical evaluations with no noted abnormalities, defects, or diagnoses. The Veteran underwent a VA examination in February 2013. The examiner opined that the Veteran’s vertigo was not due to military service. The examiner’s rationale noted that the Veteran’s vertigo started about 8 years prior, which was very far remote from his military service, and that he denied vertigo while in service in the aforementioned March 1977 service treatment record. The RO obtained an addendum medical opinion in February 2015 in which the examiner opined that it was less likely than not that the Veteran’s vertigo was caused or aggravated (permanently worsened beyond its natural progression) by his service-connected bilateral hearing loss. The February 2015 examiner’s rationale was that the Veteran’s treatment records show no in-service complaints or treatment of vertigo nor any post-service complaints or treatment until a July 2012 VA physician note. As noted above, the JMPR provides that the February 2015 opinion was inadequate with respect to not containing an adequate rationale for the opinion that the Veteran’s vertigo was not aggravated by his service-connected bilateral hearing loss. Accordingly, the Veteran underwent another VA examination in February 2019, after which the examiner opined that it was less likely than not that the Veteran’s vertigo was aggravated by his service-connected bilateral hearing loss. The February 2019 examiner explained that the Veteran’s claimed condition of vertigo could not have been aggravated beyond its natural progression by his service-connected bilateral hearing loss because vertigo is caused by a disturbed vestibular system, either due to failure of the end organs (peripheral vertigo) or due to failure of the vestibular nerves or central connections to the brainstem and cerebellum (central vertigo), whereas conductive hearing loss results from pathologic changes of either the external or middle ear structures. Citing specific current medical research, the examiner stated that it is highly unlikely that the Veteran’s bilateral hearing loss could have caused or aggravated the Veteran’s vertigo. This opinion is highly probative evidence of the etiology of the Veteran’s vertigo, as it relies on sufficient facts and data, provides a rationale for the opinion, and contains sound reasoning. Nieves-Rodriguez, 22 Vet. App. 295 (2008). The Board acknowledges the Veteran’s contention that his service-connected bilateral hearing loss either caused or aggravated his vertigo. While the Board recognizes the Veteran’s assertions that he currently has vertigo secondary to his service-connected bilateral hearing loss, the Veteran is not competent to make that determination. Although lay persons are competent to provide opinions on some medical issues, the medical etiology of the specific disability in this case, vertigo, falls outside the realm of common knowledge of a lay person and requires specialized training and medical diagnostic testing. Therefore, the Board finds that the Veteran’s statements of record cannot be accepted as competent evidence sufficient to establish service connection for vertigo. The Veteran’s claim for service connection for vertigo, to include as secondary to his service-connected bilateral hearing loss, is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine and finds it inapplicable because the preponderance of the evidence is against the claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Leamon The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.