Citation Nr: 20006829 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 14-21 010 DATE: January 29, 2020 ORDER Service connection for a condition manifested by gastrointestinal symptoms, to include as due to Gulf War exposure and/ or as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. REMANDED Service connection for neurological symptoms, to include as due to Gulf War exposure and/or as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran does not have a diagnosed gastrointestinal condition, and his symptoms have not been found to be manifestations of an undiagnosed illness, a medically unexplained chronic multi-symptom illness, or other qualifying chronic disability. CONCLUSION OF LAW The criteria for service connection a condition manifested by gastrointestinal symptoms have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1989 to August 1992, with verified Southwest Asia service from January to April 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2018, the Veteran’s claims were remanded to the RO for further development, to include obtaining additional medical records and medical opinion. The Veteran asserts that service connection is warranted for a gastrointestinal condition, to include as due to Gulf War exposure and/or as secondary to his service-connected PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that 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 the date specified in 38 C.F.R. § 3.317 (a)(1)(i), and which by history, physical examination, and laboratory tests cannot be attributed to any known diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). The term “Persian Gulf veteran” means a veteran who served on active military, naval, or air service in Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The Veteran is a recipient of the Kuwait Liberation Medal and the Southwest Asia Service Medal with two Bronze Service Stars, thereby reflecting service in Southwest Asia during the Persian Gulf War. For these reasons, the Veteran is a “Persian Gulf veteran.” A “qualifying chronic disability” for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness that are defined by a cluster of signs or symptoms (such as CFS, fibromyalgia, or irritable bowel syndrome (IBS)) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). For the purposes of this section, the term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that service connection is warranted for a condition manifested by gastrointestinal symptoms that he says is due to his service in Southwest Asia. In the alternative, he asserts that his gastric symptoms are aggravated by his service-connected PTSD and, thus, service connection is warranted. The Veteran’s STRs are silent for any complaints, treatment, or diagnosis referable to gastric symptoms. In March 2012, the Veteran underwent a VA Gulf War examination. At that time, the examiner noted that there were no diagnosed illnesses for which no etiology could be established. She acknowledged a previous diagnosis of gastritis but noted that there had been no gastrointestinal work-up, abdominal radiographs or endoscopy studies performed to confirm a diagnosis of the condition. She also acknowledged that the Veteran had visited an emergency room in the past for gastrointestinal symptoms, but even so, she concluded that there existed no evidence of a gastrointestinal disorder. At the June 2016 hearing, the Veteran testified that he experienced gastrological symptoms in service, after an incident where he took medication. After service, his ex-wife, who was a registered nurse, treated him for diarrhea and digestive problems. In a July 2016 statement from his ex-wife, she confirmed such treatment. In August 2019, in response to the Board’s January 2018 remand, the Veteran’s file was reviewed as part of a second VA Gulf War examination. Following a review of the record, to include the Veteran’s medical records and statements, the examiner acknowledged the Veteran’s stomach conditions but found that he did not have a diagnosis of a chronic gastrointestinal disease or illness. Moreover, he found that the Veteran’s symptoms were not related to an undiagnosed illness, a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or a diagnosable chronic multi-symptom illness with a partially explained etiology. In support of his conclusions, the examiner referenced specific medical records showing testing and examination related to gastrointestinal problems, for which no objective data existed to confirm a diagnosis of gastritis. It was noted, rather, that the Veteran had episodic diarrhea which was acute and not a sign of a chronic disease. Notably, the August 2019 VA examiner considered all the pertinent evidence of record, to include the Veteran’s statements, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Further, there is no medical evidence of record that contradicts such opinion. Rather, the remainder of the evidence of record supports the VA examiner’s finding. In this regard, the Veteran’s treatment records are negative for a formal diagnosis related to his gastrointestinal system. Furthermore, while the Veteran is competent to report symptoms he experiences first-hand, to include diarrhea, he is not competent to relate such symptoms to a specific diagnosis, or lack thereof, to his military service. In this regard, the diagnosis of a gastrointestinal disease involves specialized testing and the knowledge of the various body systems. Thus, in this case, lay evidence cannot competently and sufficiently establish a diagnosis of a gastrointestinal disease, or render an opinion that such symptomatology is related or unrelated to a clinically identified medical condition. Moreover, the Veteran is not competent to render an etiological opinion as such pertains to a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Veteran’s assertions as to a diagnosis and etiology of any gastrointestinal condition have no probative value. Therefore, based on the foregoing, the Board finds that the Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a current disability manifested by gastrointestinal symptoms. See McClain, supra; Romanowsky, supra. Consequently, as there is no separate current disability manifested by such, service connection for a disease manifested by gastrointestinal symptoms is not warranted. See Brammer, supra. Further, any gastrointestinal symptoms are not found to be related to his Gulf War service. As for the Veteran’s contentions that a gastrointestinal condition is aggravated by his service-connected PTSD, without a diagnosed disability, there can be no aggravation of such a disability by a service-connected one such as PTSD. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In reaching its decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND The Veteran contends that he has experienced neurological symptoms such as twitching and spasms which he asserts are due to service, to include his Gulf War service. In its January 2018 remand, the Board instructed the RO to obtain a medical opinion regarding the etiology of the Veteran’s neurological symptoms, and was given a list, based on the Veteran’s medical history, of potential causes for the symptoms. The examiner was asked to address each of the possible causes of a neurological disorder. The causes listed were: Gulf War exposure, shingles, motorcycle/motor vehicle accidents, a fall from a tree house, cervical radiculopathy, recurrent herpetic infection (differentiated from recurrent shingles), cramp fasciculation syndrome, somatization, and/or service-connected PTSD. In the resulting February 2019 report, the examiner concluded that the Veteran’s neurological symptoms were due entirely to a diagnosis of carpal tunnel syndrome (CTS). He determined that CTS was not caused by any of the possible causes listed by the Board. However, the Board must find that this report is not fully responsive to its question and, thus, is inadequate. The Veteran has reported, and the medical record shows, that he experienced muscle spasms, twitching and cramping since at least 1999. At the June 2016 hearing, the Veteran testified that the symptoms he experienced—spasms in his torso and twitching specifically—could not be due to CTS. In addition, the Board notes that the assigned examiner mistook the Board’s characterization of a fall from a tree house to be a tree falling on the Veteran’s house, which he dismissed as a possible cause of CTS. Because the examiner was asked to address whether all of the Veteran’s symptoms were due to the listed possible causes, and failed to do so, the Board finds a remand is warranted for a new etiology opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). The matter is REMANDED for the following action: Obtain a medical opinion which addresses the etiology of the Veteran’s various neurologic symptoms. The Board defers to the examiner’s discretion to determine whether another in-person examination is required to render the requested opinion. The examiner is asked to list all noted neurological symptoms, included but not limited to numbness in the extremities, torso spams and twitching. Then, with regard to each such symptom, the examiner is asked to address all potential etiologies identified by the Veteran and the record. These etiologies include: a) Gulf War exposure b) Shingles (see record which indicates after 2008 back surgery, developed shingles again, this time on left side of head and neck); see also September 2015 statement by ex-spouse (during ROTC, had poison oak on entire torso; diagnosed with shingles in Fall of 1999 on right torso)) If the etiology is related to shingles, then the examiner must opine whether: (a) the shingles is a progression of the April 1993 dermatitis; and/or (b) the shingles was aggravated beyond natural progression by service-connected PTSD. c) Motorcycle and/or motor vehicle accidents (see March 2012 VA examination (carpal tunnel syndrome likely due to motorcycle riding and/or accidents); If the etiology is related to the motorcycle and/or motor vehicle accidents, then the examiner must opine whether the residuals can be distinguished between his accidents on and off active duty. d) A fall from a tree house in approximately 2005 e) Cervical radiculopathy (see June 2010 record by Coin (diagnosed mild bilateral carpal tunnel syndrome that could be due to a prior injury or mild cervical radiculopathy). f) Recurrent herpetic infection [differentiated from recurrent shingles] (see July 2011 addendum by Trotta (recurrent shingles would be highly unlikely and would “make me question the diagnosis;” more likely would be recurrent herpetic infection). g) Cramp-fasciculation syndrome (see August 2011 addendum by Bedlack (cramps and twitches most likely “cramp-fasciculation syndrome”). h) Somatization i) Service-connected PTSD. In doing so, the examiner is asked to address whether the Veteran has a diagnosed neurological disability which is due to, or aggravated beyond its natural progression, by service-connected PTSD. Aggravation is defined as a worsening beyond the natural progression of the disability. In addition and in relation to the above questions, the examiner’s attention is directed to a March 2010 examination (showing five potential etiologies, including: multiple motorcycle wrecks in the 1990s, tree house fall resulting in L4-L5 problems, November 2006 accident, June 2008 accident, and Gulf war exposures); a June 2010 record from Fayetteville VAMC (“[n]euro appears intact”); a June 2014 record from Fayetteville VAMC (EMG results were unremarkable); and the Veteran’s June 2016 testimony (contended that his providers indicated that PTSD worsened the shingles, which eventually impacted cognitive functioning). It is essential that the examiner offer a detailed and fully-supported rationale for all conclusions reached. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.