Citation Nr: 20043765 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 16-19 621A DATE: June 29, 2020 ORDER Service connection for a lower gastrointestinal disability, claimed as chronic diarrhea is granted. FINDING OF FACT The Veteran’s chronic diarrhea is caused by his service-connected GERD. CONCLUSION OF LAW The criteria for secondary service connection for chronic diarrhea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 2002 to August 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran and his wife presented sworn testimony at a BVA hearing before the undersigned. This case was previously before the Board in August 2018 and remanded for additional development. Service Connection Gastrointestinal The Veteran seeks secondary service connection for his chronic diarrhea. In support, he reports that his chronic diarrhea is a direct result of his service-connected GERD. See Appellate Brief (May 2020). Additionally, he reported in his last VA examination that the condition had its onset in 2003 while in service and has continued thereafter. See VA medical examination (October 2019). In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Also, service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service connected disability; or, aggravated by a service connected disability. See 38 C.F.R. § 3.310 (2018); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “‘to function under the ordinary conditions of daily life including employment.’“ Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran is currently diagnosed and receives medical treatment for his chronic diarrhea. See VA medical examination (October 2019) and see also VA medical treatment record (April 2009, January 2013 and 2018). In addition, in the August 2018 remand, the Board, as a finder of fact, concluded that there was competent and credible evidence of lower gastrointestinal since service. Indeed, in the August 2018 remand instructions, the Board indicated the VA examiner should consider as true that the Veteran’s lower GI symptoms as reported during the August 2018 hearing before the Board began during his active duty service. As such, the Board finds that service connection is warranted. The Board acknowledges that on October 2019 a VA examiner opined that the condition was less likely than not related to service. See VA medical examination (October 2019). However, the Veteran’s medical records shows various outpatient treatment records of his chronic diarrhea and treatment. Further, the Veteran and his spouse credibly and competently provided sworn testimonies that he suffered from heartburn and chronic diarrhea in service. See BVA Hearing transcripts (August 2018). The Veteran and spouse are competent to report chronic diarrhea symptoms that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the medical and lay evidence linking the Veteran’s chronic diarrhea condition to his service is probative, competent and credible. Additionally, the Veteran has stated throughout the appeal that his chronic diarrhea condition started in service. In light of the foregoing and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for chronic diarrhea condition is warranted. See Saunders; see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.