Citation Nr: 20006689 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 14-11 529 DATE: January 27, 2020 ORDER Service connection for chronic diarrhea, to include as due to an undiagnosed illness and/or service-connected hiatal hernia with gastroesophageal reflux disease (GERD) is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is denied. FINDINGS OF FACT 1. There is no evidence of chronic diarrhea in service and no competent medical evidence linking the Veteran’s current chronic diarrhea with his period of service, to include a service-connected disability. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal period, a current diagnosis of an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic diarrhea are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to December 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2017, the Veteran failed to appear, without explanation, for a Board hearing. There is no indication in the record that he did not receive notification of the hearing and he has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d). This case was previously before the Board in February 2018 at which time it was remanded for additional development. Service Connection 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Certain chronic diseases, such as psychoses, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). A “Persian Gulf veteran” is a veteran who served in the Southwest Asia theater of operations during the Persian Gulf War as defined in 38 C.F.R. § 3.2 and 38 C.F.R. § 3.317(a)(1)(ii) and is eligible for consideration of compensation for certain disabilities due to undiagnosed illnesses. 38 U.S.C. § 1117, 38 C.F.R. § 3.317. The Persian Gulf War began August 2, 1990. 38 C.F.R. § 3.2(i). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome (CFS), fibromyalgia or irritable bowel syndrome (IBS). 38 C.F.R. § 3.317(a)(2). 1. Service connection for chronic diarrhea, to include as due to an undiagnosed illness and/or service-connected hiatal hernia with GERD is denied. The Veteran contends that service connection is warranted for chronic diarrhea, to include as due to an undiagnosed illness and/or service-connected hiatal hernia with GERD. Service treatment records (STRs) show that the Veteran was diagnosed with gastritis in October 1988 after he complained of experiencing diarrhea for two days. However, the Veteran’s December 1996 separation examination shows normal “abdomen and viscera,” “anus and rectum,” and “G-U system” and in a December 1996 report of medical history, the Veteran denied “piles or rectal disease” and “stomach, liver, or intestinal trouble.” A post-service VA treatment record dated in April 1998 shows an assessment of chronic diarrhea “probably with GERD.” A February 2002 VA general examination shows a history of chronic diarrhea since 1997 and the Veteran reported that he went to the bathroom 8 to 10 times per day. The examiner stated that it is difficult to say from the Veteran’s history whether he had any diarrhea symptoms while he was in service and that it “sounds like” his claimed condition began soon after he separated from service. An imaging study revealed mild gastritis and some spasm of the gastric antrum and irritable duodenal bulb. The examiner diagnosed the Veteran with chronic diarrhea, possibly functional. However, the examiner stated that he could not rule out irritable bowel syndrome (IBS) or an organic etiology and found that the Veteran’s diarrhea “may not be service-connected.” An April 2002 private treatment record shows a diagnosis of chronic diarrhea of unknown etiology. A list of the Veteran’s active VA medical problems at the time included unspecified gastritis and gastroduodenitis. The Veteran submitted an initial claim for service connection for chronic diarrhea in January 2011. In connection with this claim, he was afforded a VA hernia examination in May 2011. The examiner noted a single entry in the Veteran’s STRs in October 1988 regarding diarrhea and a diagnosis of gastritis. The examiner also noted complaints of diarrhea in March 1998 and April 1998. However, the examiner indicated that there was a large gap in the medical record, from 1998 to 2011, devoid of reports of diarrhea. During the examination, the Veteran reported that he had had diarrhea since service occurring up to five times a day. A physical examination revealed normal anus, no hemorrhoids, no dermatitis, stool brown, and normal bowel sounds. Blood test results were negative. The examiner diagnosed the Veteran with functional diarrhea less likely than not related to service or the Veteran’s service-connected GERD or gastrointestinal treatment. The examiner reasoned that diarrhea was related to spontaneous onset bowel function and is age and diet-related. Further, the examiner stated that the onset and chronicity of diarrhea could not be stated absent any medical evidence since 1998. Pursuant to the February 2018 Board remand, the Veteran was afforded a VA intestinal condition examination in October 2019. Significantly, the examiner noted a diagnosis of chronic diarrhea since 1998 and opined that the Veteran’s diarrhea was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran’s military service. As rationale for this opinion, the examiner noted that there was only once instance of diarrhea in service in 1988 which did not represent a chronic condition. The first indication of chronic diarrhea was in 1998, after the Veteran’s discharge. Given the lapse of time between the in-service complaint of diarrhea in 1988 and the indication of chronic diarrhea in 1998, it is unlikely that the Veteran’s chronic diarrhea is related to his military service. The October 2019 VA examiner also opined that the Veteran’s chronic diarrhea is less likely than not caused or aggravated by the Veteran’s service-connected hiatal hernia and GERD. As rationale for this opinion, the examiner noted that hiatal hernia and GERD are in the same organ system but, otherwise, are not related to or causative of the Veteran’s lower gastrointestinal tract condition. With regard to the indication in the February 2002 VA examination that irritable bowel syndrome could not be ruled out as a diagnosis for the Veteran’s diarrhea, the examiner noted that the Veteran may also have irritable bowel syndrome but that there was no documentation to fully support this diagnosis so the current working diagnosis should be chronic diarrhea of unknown etiology. Furthermore, the examiner noted that, if the Veteran had irritable bowel syndrome, this would not be related to his hiatal hernia/GERD as his symptoms are mostly lower gastrointestinal (GI) and GERD/hiatal hernia affect the upper GI system. Upper GI conditions would be unlikely to have an effect on lower GI conditions. The examiner also noted that chronic diarrhea is not due to an injury. The only related event was a report of acute diarrhea which was, likely, infectious. As such, the examiner opined that the Veteran’s chronic diarrhea was not aggravated beyond its normal progression by service, including his service-connected hiatal hernia. As rationale for this opinion, the examiner noted that hiatal hernia/GERD have never been known to cause diarrhea. There is nothing in the service record that would have caused diarrhea either. The earliest indication of chronic diarrhea is November 1997 (based on the history of chronic diarrhea beginning four months earlier in the February 1998 VA general examination). This would put the onset of the Veteran’s chronic diarrhea about a year after his discharge from service. Initially, the Board notes chronic diarrhea is not included as a chronic condition under 38 C.F.R. § 3.309(a). As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. First, while STRs show that the Veteran was diagnosed with gastritis in October 1988 after the Veteran complained of experiencing diarrhea for 2 days, the Veteran’s December 1996 separation examination shows normal “abdomen and viscera,” “anus and rectum,” and “G-U system” and in a December 1996 report of medical history, the Veteran denied “piles or rectal disease” and “stomach, liver, or intestinal trouble.” The earliest indication of chronic diarrhea is a post-service VA treatment record dated in April 1998. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no medical evidence in the record that links the Veteran’s chronic diarrhea to an incident of the Veteran’s active military service. As above, the October 2019 VA examiner opined that the Veteran’s current chronic diarrhea is less likely than not related to his acute incident of diarrhea while in service in October 1988. The claim is also denied on a secondary basis. As above, the October 2019 VA examiner opined that the Veteran’s chronic diarrhea is not due his service-connected hiatal hernia/GERD as upper GI conditions (hiatal hernia/GERD) would be unlikely to have an effect on lower GI conditions (chronic diarrhea). While the Veteran has alleged that chronic diarrhea is related to his military service, the Board finds that the question regarding the potential relationship between the Veteran’s chronic diarrhea and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of the chronic diarrhea involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. With regard to the Veteran’s allegation that his chronic diarrhea is due to an undiagnosed illness due to environmental exposures during the Persian Gulf War, while the record reflects service in the Persian Gulf in 1988, it does not reflect service there or elsewhere in Southwest Asia during the Persian Gulf War period, which began in August 1990. See 38 C.F.R. § 3.2. Accordingly, the Persian Gulf presumption is not for application. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for chronic diarrhea. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for an acquired psychiatric disorder, to include PTSD and depression is denied. The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include PTSD and depression. He has described a stressful in-service incident which, he contends, led to the development of his PTSD. Specifically, in his July 2012 notice of disagreement (NOD), the Veteran indicated that in July 1988, he was attached to the USS Halyburton in the Persian Gulf and was on aircraft watch as part of a surface-to-air missile team (“Stringer”) when another ship in the area, the USS Vincennes, shot down an Iranian passenger aircraft killing all on board. Service personnel records reflect that the Veteran served on the USS Halyburton in June 1988. In addition, the command history of the USS Halyburton associated with the claims folder reflects that the vessel was on patrol in the Persian Gulf in July 1988. A Washington Post article associated with the claims folder also reflects that the USS Vincennes downed an Iranian civilian jetliner over the Persian Gulf in July 1988. The Board finds, first, that there is competent and credible evidence of an in-service incident. Specifically, the command history of the USS Halyburton confirms that the ship was on patrol in the Persian Gulf when the July 1988 incident occurred. Further, the Veteran’s STRs confirm that he was on the USS Halyburton around that time the July 1988 incident occurred. The Veteran’s STRs are silent with respect to psychiatric symptoms related to the July 1988 downing of the Iranian civilian jetliner or to the fate of its passengers. The only psychiatric symptoms reported in service relate to a history of alcohol abuse in September 1992 which appears to predate his service. Significantly, a December 1996 separation examination shows a normal psychiatric system. Also, in a report of medical history dated in December 1996 the Veteran specifically denied “depression or excessive worry” and “nervous trouble of any sort.” Post-service treatment records reflect treatment for depression. Specifically, a March 2007 VA treatment record shows that the Veteran was experiencing depression due to social stress, including divorce, job loss, health concerns, and financial instability. A May 2007 VA treatment record shows that the Veteran was diagnosed with major depressive disorder (MDD) related to his medical condition - specifically, factor V Leiden deficiency, cardiomyopathy heart failure, and pulmonary emboli. A June 2011 VA treatment record shows a diagnosis of depression, NOS. At the time, the Veteran related his depression to family and work issues as well as to having been the victim of burglary and theft. The Veteran submitted a claim for service connection for PTSD in January 2011. In connection with this claim, he was afforded a VA examination in October 2019. Significantly, upon review of the claims file (to include the May 2007 diagnosis of MDD and June 2011 diagnosis of depression, NOS), the examiner found that there was no objective medical evidence to substantiate a diagnosis of any acquired psychiatric disorder. The examiner noted that the Veteran was not endorsing enough symptoms or severity of symptoms to meet criteria for any psychiatric disorder, to include PTSD, MDD, and depression NOS. Symptoms were, likewise, not interfering with social or occupational functioning. While the Veteran lacked social interaction, he described this as his preference. He had interest in and would engage in enjoyable activities if he had more time off from work. He was consistently and gainfully employed with no difficulties with peers, supervisors, etc. He also had good attendance. The examiner noted that the Veteran’s exposure to traumatic events while in service did not render sufficient symptoms to meet the criteria for a PTSD diagnosis. The examiner also considered trauma and other stressor-related disorder in differential diagnosis and he did not meet the criteria for this either. Also of record are VA and private treatment records dated through December 2018. Significantly, a September 2016 VA treatment record shows complaints of depression but an April 2018 screening for depression was negative. The question for the Board is whether the Veteran has an acquired psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this case, the Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. While VA treatment records show diagnoses of depression in May 2007 and June 2011, the October 2019 VA examiner considered these treatment records in finding that the Veteran did not meet the established diagnostic criteria to substantiate a diagnosis of any acquired psychiatric disorder during the appeal period, as any psychiatric symptoms were not interfering with social or occupational functioning. Furthermore, the Veteran’s depression in May 2007 and June 2011 was related to family and work issues as well as to having been the victim of burglary and theft. Also, while the Veteran was treated for complaints of depression in September 2016, a screening depression in April 2018. As such, while the Veteran has, undoubtedly, experienced psychiatric symptoms during the appeal period beginning January 2011, the record, as a whole, shows that these symptoms did not rise to the level to substantiate a diagnosis of any acquired psychiatric disorder during the appeal period. Also, while the Veteran contends that he experienced significant stressors during his military service, such do not appear to have resulted in psychiatric disability. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, Counsel 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.