Citation Nr: 20022524 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-56 011 DATE: April 1, 2020 ORDER Entitlement to service connection for Crohn's disease is granted. FINDING OF FACT The preponderance of the evidence supports that the Veteran’s Crohn’s disease was incurred or otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for Crohn's disease have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to June 1982, December 1984 to June 1989, November 1990 to May 1991, February 2004 to February 2005, and August 2010 to February 2011, with additional periods of service in the Army and Air Force Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge during a January 2020 hearing. A transcript of the hearing is associated with the Veteran’s claim file. As a matter of clarification, a claim for service connection for Crohn’s disease (claimed as abdominal pain and cramps, weight loss, and diarrhea) was denied in a final October 1997 rating decision. However, the Board does not construe the present claim as an application to reopen. In the October 1997 decision, the RO stated there were no service treatment records (STRs) available to review. The current electronic record now includes relevant, official service department records. When VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA previously decided the claim, VA will reconsider the claim without the requirement of new and material evidence to reopen the claim. 38 C.F.R. § 3.156(c). Regardless, since the evidence would be new and material, the same result is reached. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for a chronic disability manifested by certain signs or symptoms which 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 December 31, 2021, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1); 81 FR No. 200, pp. 71382-71384 (October 17, 2016). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders; 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 multisymptom illness; or 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). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: (1) Fatigue (2) Signs or symptoms involving skin (3) Headache (4) Muscle pain (5) Joint pain (6) Neurologic signs and symptoms (7) Neuropsychological signs or symptoms (8) Signs or symptoms involving the respiratory system (upper or lower) (9) Sleep disturbances (10) Gastrointestinal signs or symptoms (11) Cardiovascular signs or symptoms (12) Abnormal weight loss (13) Menstrual disorders. 38 C.F.R. § 3.317(b). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least six months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least three months prior to diagnosis. Id. 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 Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). If an examiner has determined the Veteran’s disability pattern to be either a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, then service connection cannot be granted under 38 C.F.R. § 3.317 and may only be granted if the medical evidence is sufficient to establish service connection on a direct basis. See generally Combee v. Principi, 34 F.3d 1039, 1043 (1994). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As an initial matter, the Veteran’s official military personnel records show that he served in the Southwest Asia Theater of operations in support of Operation Desert Shield/Storm from November 1990 to May 1991. Thus, the Veteran is a Persian Gulf War Veteran and his exposure to environmental hazards in the Persian Gulf is conceded. Crohn’s disease, however, is a structural not functional gastrointestinal disorder, and service connection cannot be granted on a presumptive basis. 38 C.F.R. § 3.317. Even though service connection is not warranted on a presumptive basis, the Board must consider whether service connection is warranted on any other basis. See Combee, 34 F.3d 1039 (Fed. Cir. 1994). As stated previously, the October 1997 rating decision denied service connection for Crohn’s disease because STRs were not available for review as efforts to obtain STRs from all potential sources were unsuccessful. Since then, the Veteran’s STRs have been associated with his claims file. A review of his STRs show that while the Veteran did not have a diagnosis of Crohn’s disease during active duty, he complained of loose, watery stools since 1991 after his return from Desert Storm. See October 1994 VA treatment record. He was diagnosed with Crohn’s disease in 1995. A February 1997 treatment record from Community Surgeons indicates that the Veteran was initially seen at the clinic in December 1994 at which time he had complaints of difficulty with bowel movements since being stationed in Saudi Arabia during Desert Storm. He has been having seven or more bowel movements per day with blood in his stool. The physician stated that at this time the most likely diagnosis is Crohn’s disease. See February 1997 treatment record from Community Surgeons. The Veteran also complained of diarrhea and cramps for four hours a day. See December 1996 VA treatment record. Notably, the Veteran’s July 1984 enlistment examination was completely negative for any gastrointestinal issues. Additionally, the Veteran did not endorse any gastrointestinal symptoms on his May 1991 separation examination. However, the Veteran has credibly reported that he did not seek treatment during service because he wanted to deploy and serve the country. See Board hearing transcript at pg. 10. The Veteran was afforded a VA examination in February 2014. He was diagnosed with Crohn’s disease. The Veteran reported that his condition began in 1991 upon returning from the Gulf War. He also reported losing weight and experiencing diarrhea every two hours. The VA examiner opined that the Veteran’s diagnosed Crohn’s disease is at least as likely as not began and/or occurred while in service or within one year of exiting service. She stated that she reviewed the claims file and while the Veteran did not complain of symptoms and/or seek medical advice while in service, after exiting service (upon return from deployment), he complained of symptoms, sought medical advice and was diagnosed with Crohn’s disease via a private provider. She listed several medical records regarding his visits to private providers to support her rationale. Additionally, the VA examiner provided an opinion that the Veteran’s claimed disability symptoms/patterns are due to or the result of a disease with a clear and specific etiology and the diagnosis is Crohn’s disease. She also opined that the Veteran’s diagnosed Crohn’s disease is at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. However, in March 2014, the RO asked the VA examiner to provide an addendum medical opinion regarding the Gulf War statement. The VA examiner was asked whether the Veteran’s Crohn’s disease is related to his exposure to smoke from oil fires and scud missile detonations. She responded that she cannot resolve this issue without resort to mere speculations as current medical literature shows limited studies of only two possible environmental causes i.e., smoking and the use of NSAIDs. She stated that unfortunately, there have been no scientific studies on whether exposure to oil fire smoke and detonating scud missiles can cause/contribute to Crohn’s disease. Notwithstanding the March 2014 addendum medical opinion based on the Gulf War illness, the Board finds that the VA examiner provided a positive nexus opinion regarding direct service connection as stated in her February 2014 opinion. The VA examiner had opined that the Veteran’s Crohn’s disease began while in service with a clear and specific etiology. The Board affords great probative weight to the findings of the VA examiner who provided the February 2014 medical opinion as she carefully cited to the relevant evidence, demonstrating that she had reviewed the Veteran’s history, medical records, and assertions. In assigning high probative value to this examiner’s opinion, the Board notes that the examiner reviewed the records, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the examiner was not fully aware of the Veteran’s past medical history or that she misstated any relevant fact. Indeed, the examiner provided recitation of the record and fully supported her conclusions with specific citation to the record. Therefore, the Board finds that the March 2014 addendum medical opinion for smoke from oil and scud missile detonations is less probative and was in fact unnecessary as she had already stated that the condition at least as likely as not began during service. The Veteran testified before the undersigned in January 2020 that he started having problems with his bowels during active duty in 1990 to 1991. Towards the end of his tour, he stated that he had issues with having to go to the restroom more frequently that he used to. The Veteran also testified that after he returned from his deployment, he went to see civilian doctors for his condition. See Board hearing transcript at pgs. 4-5. Furthermore, the Veteran’s sister and spouse provided statements that they had known the Veteran to be healthy prior to his deployment and after his deployment he needed to be near a restroom and developed stomach pain, nausea, and had lost weight. See November 2013 Statement in Support of Claim. The Veteran’s VA treatment records as well as private treatment records indicate that the Veteran consistently sought treatment during his Reserve time and continued to seek treatment after his discharge from active duty. In light of the probative evidence, the Board finds that the preponderance of the evidence supports the claim for service connection for Crohn’s disease. In this regard, the evidence establishes that the Veteran has a disease with a clear and specific etiology, Crohn’s disease, and that this condition was incurred during service. As such, service connection based on a direct basis is established. Accordingly, the claim for entitlement to service connection for Crohn’s disease is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate 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.