Citation Nr: 21001105 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-05 350 DATE: January 7, 2021 ORDER Entitlement to service connection for a lower back disability is granted. REMANDED Entitlement to service connection for a gastrointestinal disorder is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his current lower back disability was incurred in and is related to active service. CONCLUSION OF LAW The criteria for service connection for a lower back disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to June 1991, and from July 24, 1993 to August 6, 1993. The Veteran also had active duty for training from July 1990 to November 1990, as well as additional inactive service. These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board reopened and remanded the issue of entitlement to service connection for a lower back disability for further development as to the Veteran’s dates of service. The Board also remanded the issue of service connection for lactose intolerance (claimed as stomach issues) to schedule a hearing before a Decision Review Officer (DRO), per the Veteran’s request in his April 2014 VA Form 9. On May 22, 2020, the RO contacted the Veteran to schedule the DRO hearing and left a voicemail. On June 29, 2020, the RO contacted the Veteran again regarding the hearing. The Veteran directed the RO to contact his attorney. The same day, the RO contacted attorney Robert A. Friedman twice and left a voicemail. The RO attempted to contact the Veteran and his attorney on August 27 and 28, 2020. The RO has not received a response to several phone calls and letters. Accordingly, the Board finds that the Veteran has withdrawn his request for a DRO hearing. Entitlement to service connection for a lower back disability is granted. The Veteran contends that his lower back disability is related to active service. See Aug. 2008 Notice of Disagreement. Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106. Regarding a current disability, in August 2008, the Veteran submitted a letter from a private chiropractor, Dr. B.C. Dr. B.C. stated that the Veteran has a bulging disc that was re-aggravated due to his military service. Dr. B.C. further stated that the Veteran experiences intense muscle spasms with abrupt pain at times. In October 2009, the Veteran underwent a VA spine examination. The examiner noted that the Veteran experiences back pain. The examiner further noted an onset date of 1992 and that the intensity of the pain is an 8 out of 10. Accordingly, it is at least likely as not that the Veteran has a current diagnosis of a lower back disability and the first element of service connection is met. Regarding an in-service event, a DD Form 689 notes that the Veteran suffered a back injury on August 1, 1993. Under the Remarks section, the Officer noted, “no ruck, no PT, no lift [more than] 15 lbs., [m]arch at own pace x 48 hrs.” A care note from the same day noted that the Veteran was picking up some cargo and felt a burning knotting pain in his lower back. The provider noted that the Veteran experienced a pulled muscle and prescribed Norgesic forte. The Veteran and a fellow reservist attested that the August 1, 1993 back injury occurred during a period of ACDUTRA, but the reserve unit is currently disbanded and the Department of the Army reported the Veteran had no ADUTRA dates after separation from active duty in June 1991. Accordingly, the Board remanded the matter in September 2017 to determine the Veteran’s dates of service. In June 2020, the RO obtained the Veteran’s DFAS Payment Worksheet for the year 1993. For the date August 1, 1993, the number “50” is listed. Along with the worksheet, DFAS provided a key, which notes a “50” signifies that the Veteran served on active duty on that date. The Board finds that it is at least likely as not that the Veteran experienced an in-service back injury while he served on active duty. Nothing in claims file casts doubt on the August 1, 1993 injury and the June 2020 DFAS Worksheet shows that the injury occurred while the Veteran served on active duty. Accordingly, the second element of service connection is met. As to a nexus between the Veteran’s current disability and the in-service event, there is only one medical opinion of record as to the Veteran’s lower back disability. In the November 2009 VA spine examination, the examiner opined that the disc bulge shown on a September 2006 MRI was at least likely as not caused by or a result of the injury described as the injury described as a pulled muscle in August 1993. The examiner supported the opinion by stating that disc bulges can be caused by injuries of this nature and the symptoms can increase over time. Further, the examiner stated that the Veteran’s imaging, history, and physical examination were consistent with the diagnosis and his documented in-service back injury. As the claims file lacks any conflicting medical opinion, the Board finds that it is at least likely as not that the Veteran’s in-service back injury caused his current lower back disability, as opined by the November 2009 VA examiner. Accordingly, the third element of service connection is met. Resolving all reasonable doubt in the Veteran’s favor, service connection for a lower back disability is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disorder is remanded. In March 2012, the Veteran underwent a VA examination pertaining to gastrointestinal issues as part of a Gulf War general medical examination. The examiner diagnosed the Veteran with lactose intolerance and found no evidence of an undiagnosed illness. See Mar. 2012 VA Examination, p. 8. The examiner also noted that there was insufficient evidence for a diagnosis of IBS, as IBS is primarily a diagnosis of exclusion and the Veteran had never been evaluated for other gastrointestinal diagnoses, such as bowel diseases and Celiac disease. Id. She further stated that the Veteran’s lactose intolerance was already an “appropriate” diagnosis for his symptoms. The examiner did not opine as to whether the Veteran’s gastrointestinal issue is related to his service on a direct basis. Id. The Board finds another VA medical opinion is needed for the following reasons. First, medical evidence generated after the 2012 VA examination conflicts with the VA examiner’s conclusion that the Veteran does not have IBS (manifested by reports of longstanding diarrhea and abdominal pain). See, e.g., October 2013 VA GI clinic initial consult (noting Veteran’s symptoms most likely consistent with diarrhea predominant IBS, but ordered workup to confirm); June 2015 VA primary care note (noting diagnosis of IBS: diarrhea; noted recent endoscopy and colonoscopy negative). Moreover, the 2012 VA examiner explained that IBS is a diagnosis of exclusion, and the Veteran had not been fully “worked up” with diagnostic tests to rule out other diagnoses; however, a subsequent, January 2014 VA upper endoscopy report showed all normal findings. In summary, another VA medical opinion is needed to reconcile the conflicting medical evidence on whether the Veteran has had IBS at any time during the appeal period because IBS is a functional gastrointestinal disorder that qualifies as a “medically unexplained chronic multisymptom illness” (MUCMI) for presumptive service connection purposes. See 38 C.F.R. § 3.317(a)(2)(i)(B)(3). Second, medical evidence of record suggests that the Veteran’s current gastrointestinal symptoms may be secondary to his service-connected posttraumatic stress disorder (PTSD) and/or medication prescribed for same. Thus, a secondary service connection opinion also is needed (as to any current gastrointestinal disorders that are not subject to presumptive service connection under § 3.317(a)). See, e.g., December 2017, October 2018, and July 2019 VA psychiatry notes (noting antidepressant Cymbalta caused stomach upset); January 2009 VA note (noting diarrhea when stressed); January 2010 VA note (noting watery, non-bloody diarrhea that is sometimes associated with mood). The matters are REMANDED for the following action: Schedule a VA medical opinion regarding the gastrointestinal disorder claim. Another examination is not necessary unless the examiner cannot answer any of the questions below without one. The examiner should review the record and answer the following: (a.) Do the Veteran’s current gastrointestinal symptoms (i.e., reports of longstanding, frequent episodes of diarrhea and abdominal pain) constitute either an (1) undiagnosed illness, or (2) a medically unexplained chronic multisymptom illness (MUCMI) defined by a cluster of signs or symptoms, such as a functional gastrointestinal disorder (to include IBS)? Please expressly consider the conflicting medical evidence of record regarding whether IBS is the proper diagnosis: See March 2012 VA examination (finding diagnosis of lactose intolerance is correct diagnosis based on his history and symptoms and finding no evidence of IBS; acknowledging that although IBS was mentioned in his records as a possible differential diagnosis, his symptoms are more consistent with lactose intolerance; explaining that IBS is primarily a diagnosis of exclusion, and this Veteran has never been thoroughly worked up for other GI diagnoses; noting case complicated by Veteran’s chronic alcohol dependence, which can impact bowel patterns); but see October 2013 VA GI clinic initial consult (noting Veteran’s symptoms most likely consistent with diarrhea predominant IBS, but ordered workup); January 2014 VA upper endoscopy report (all findings regular / normal); June 2015 VA primary care note (noting diagnosis of IBS: diarrhea; noted recent endoscopy and colonoscopy negative). Note: The term MUCMI 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. IF AND ONLY IF the answer to question (a) above is no, then proceed to answer the following questions. (b.) Are any current gastrointestinal disorders other than IBS at least likely as not related to active service? Please consider the Veteran’s reports of longstanding gastrointestinal symptoms (e.g., frequent episodes of diarrhea and abdominal pain) since soon after he returned from his Persian Gulf War deployment. E.g., March 2012 VA examination, history; January 2014 VA procedure note. (c.) Are any current gastrointestinal disorders other than IBS least as likely as not caused by (proximately due to) the Veteran’s service-connected PTSD, to include medication side effects? See, e.g., December 2017, October 2018, and July 2019 VA psychiatry notes (noting antidepressant Cymbalta caused stomach upset); January 2009 VA note (noting diarrhea when stressed); January 2010 VA note (noting watery, non-bloody diarrhea that is sometimes associated with mood). (d.) Are any current gastrointestinal disorders other than IBS at least as likely as not aggravated (worsened to any degree) by medication prescribed service-connected PTSD, to include medication side effects? See, e.g., December 2017, October 2018, and July 2019 VA psychiatry notes (noting antidepressant Cymbalta caused stomach upset); January 2009 VA note (noting diarrhea when stressed); January 2010 VA note (noting watery, non-bloody diarrhea that is sometimes associated with mood). The examiner must provide rationales for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. R. JANOFSKY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.